Court No. - 36
Case :- WRIT - A No. - 35886 of 2016 Petitioner :- Ravindra Nath Tripathi And 32 Ors.
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Siddharth Khare,Ashish Kumar Singh,Mohit Singh,Sri Ashok Khare Counsel for Respondent :- C.S.C.,Rohit Ranjan Agarwal,Satyam Singh,Shiv Nath Singh Case :- WRIT - A No. - 36462 of 2016 Petitioner :- Jitendra Singh And 15 Ors.
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Siddharth Khare,Ashish Kumar Singh,Mohit Singh,Sri Ashok Khare Counsel for Respondent :- C.S.C.,Rohit Ranjan Agarwal,Satyam Singh,Shiv Nath Singh
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Ashish Kumar Singh, learned counsel for the petitioner and Shri Devesh Vikram, learned Standing Counsel. Shri Akhilesh Kumar holding brief of Shri Satyam Singh, appears for respondent nos.3 and 4.
Since the controversy involved in both the writ petitions are similar, they are being decided by this common judgment.
The facts of WRIT - A No. - 35886 of 2016 are being taken as a leading case for deciding the writ petitions.
The writ petition has been preferred with following reliefs:-
"(i) a writ, order or direction of a suitable nature commanding the respondents to disburse to the petitioners their regular monthly salary as cadre secretaries, regularly, every month and also to disburse the arrears of their salary from June 2003 till date (excepting the salary paid for the period of 6 month from January to June 2009) within a period to be specified by this Hon'ble Court.
(ii) a writ, order or direction of a suitable nature commanding the respondents to extend the benefit of the revised pay scale as enforce on recommendation of 6th Pay commission to the petitioners and to ensure regular monthly salary in such revised pay scale and also to disburse the arrears of salary taking into account such revision of pay scale."
Learned counsel for the petitioner submits that similar controversy has already been before this Court in Writ Petition No.7774 of 2010 (All India Cadre Secretaries Association Primary Agriculture Co-operative Credit Society v. State of U.P. & Ors.), which was disposed of on 9.3.2019 with following observations:-
"A two fold relief has been claimed by the petitioner no.1 Association and its Members who have been arrayed as petitioner nos.2 to 10. They are Secretaries of Primary Agricultural Cooperative Credit Societies registered under the U.P. Cooperative Societies Act, 1965 and their service is governed by the rules known as the U.P. Primary Agricultural Cooperative Credit Society Centralised Service Rules, 1976. The power to frame regulations under the said rule is conferred on the State Cadre Authority with the prior approval of the Registrar, Cooperative Societies.
The first prayer primarily is, that the amendments brought about namely 10th Amendment Rules of 2003 and the 12th Amendment Rules of 1976, be declared ultravires or in the alternative to restore the status of the conditions of service as existing prior to the said amendments. The second relief framed is for regular payment of salary through public funds including arrears with effect from 2.6.2003. A subsidiary prayer to this relief is for revision of the said pay scale and also to treat age of the retirement of the petitioner to be 60 years and not 58 years.
Sri Ashok Khare learned senior counsel for the petitioners contends that in view of the consequences which flow, it is evident that the rules so framed are in violation of Section 122-A of the U.P. Cooperative Societies Act and it is obvious that the amendment rules have become unworkable with mounting arrears of salary, revised pay scale and consequential benefits. The writ petition therefore narrates the grievance of the petitioners that their service conditions have been altered without taking care of the consequences and substitution of the rule has brought about an unworkable situation and, therefore the relief should be granted.
Learned standing counsel on the other hand contends that so far as non-payment is concerned, the same is now the burden of the Primary Agricultural Society keeping in view the amendment that was necessary and the petitioners do not have any right either vested or otherwise to compel the State to release funds for the payment of salary to the petitioners through the society.
Before embarking upon the aforesaid inquiry it would be suffice to state that while interpreting statutory rules it has to be kept in mind that the words that have been introduced by way of amendment are not be lightly brushed aside and the court should avoid a construction which may reflect the own understanding of the court of a better situation. The courts have to start with a presumption in favour of the constitutionality of rule, and the rule making authority must be presumed to be competent to have knowledge of its limitation to frame such rules within its powers. The court cannot interpret a provision as to what it is supposed to be, but it can only indicate as to what has been actually said. This has to be done keeping in view of the principle that the job of the court is to secure the object of the rules and to avoid any interpretation which may result in supplementing a new policy altogether.
In the instant case the rules which have been amended bring about a change of procedure and the presumption is that the said change has been brought about for a purpose with some imagination behind it. Merely because the amendments bring about some procedural inconvenience, the same cannot be sufficient to strike down the rules as ultravires. If the societies are failing to perform their duties under the amended rules, a mandamus can be issued to them provided they are under a statutory duty to discharge some obligations and even otherwise the said authority can issue administrative instructions for compliance of the procedure prescribed under the rules but the same cannot be a ground to strike down a rule. In the absence of any legislative competence or any discrepancy having been pointed out being inconsistent with any other rule, the amendment cannot be struck down as ultravires on the asking of the petitioners.
Accordingly the first point raised deserves to be rejected.
The second argument is in relation to the implementation of the rule and its effectiveness. This can be looked into by the Registrar, Cooperative Societies himself who has enough powers to exercise control over the societies under the U.P. Cooperative Societies Act, 1965. The petitioners therefore may approach the Registrar, Cooperative Societies for the redressal of their grievances with regard to the delayed payment, non-payment, revision of pay scale or such other benefits to which they claim entitlement.
Accordingly, the writ petition is disposed of with a direction to the petitioners to approach the respondent no.4 for the redressal of their grievances who shall examine the matter of the petitioners and pass an appropriate order in accordance with law.
The writ petition stands disposed of accordingly."
The aforesaid order was subjected to challenge in Special Appeal No.584 of 2010 (All India Cadre Secretaries Association P.A.C.C.S. & Ors. v. State of U.P. & Ors.), which was dismissed on 5.2.2016 with following observations:-
"Supplementary affidavit filed today is taken on record.
This special appeal has been filed challenging the validity / correctness of the judgment dated 9.3.2010 passed in Writ-C No.7774 of 2010 (All India Cadre Secretaries Association Primary Agriculture Co-operative Credit Society U.P. & others Vs. State of U.P. through Principal Secretary Co-operative Department, Lucknow and others ) which reads as under : -
"Accordingly the first point raised deserves to be rejected.
The second argument is in relation to the implementation of the rule and its effectiveness. This can be looked into by the Registrar, Cooperative Societies himself who has enough powers to exercise control over the societies under the U.P. Cooperative Societies Act, 1965. The petitioners therefore may approach the Registrar, Cooperative Societies for the redressal of their grievances with regard to the delayed payment, non-payment, revision of pay scale or such other benefits to which they claim entitlement.
Accordingly, the writ petition is disposed of with a direction to the petitioners to approach the respondent no.4 for the redressal of their grievances who shall examine the matter of the petitioners and pass an appropriate order in accordance with law.
The writ petition stands disposed of accordingly. "
Instead thereof, the petitioners are approaching the Registrar Cooperative Societies for redressal of his grievance with regard to the delayed payment, non-payment, revision of pay scale or such other benefits to which they claim entitlement has approached for this special appeal. Since, the matter is relegated by the impugned order to the Registrar for considering the grievance of the petitioners, we do not want to interfere in this matter.
Accordingly, the special appeal is dismissed."
In this backdrop, learned counsel for the petitioners states that as per the leave accorded by this Court in the aforesaid judgments, the petitioners have also made detailed representation, which was received in the department on 1.3.2016 (paper book at p.130) and the same is still undecided and as such request has been made for a direction to the competent authority to look into the grievance of the petitioners and pass appropriate order strictly in consonance with the relevant Rules and Regulations amended from time to time.
So far as the relief as has been asked for by the petitioners, the same has not been objected by learned counsel for the respondents.
Considering the facts and circumstances of the case and with the consent of parties, both the writ petitions stand disposed of asking the Registrar of the Cooperative Societies to look into the grievance of the petitioners and pass appropriate order on the representations so moved by the petitioners in accordance with law and as per the relevant Rules and Regulations amended from time to time expeditiously and preferably within three months from the date of production of certified copy of this order but certainly after giving opportunity to all the stake holders in the matter.
Order Date :- 27.11.2019 SP/