Conditions Of Service Of Officers And Employees Do Not Constitute Functions Of U.P. Avas Evam Vikas Parishad- SC Confirms

A Supreme Court Bench of Justice Sanjay Kishan Kaul, Justice Abhay S Oka, and Justice Vikram Nath has upheld the decision of the Apex Court in the case of State of Uttar Pradesh vs Preetam Singh & Ors., and it has confirmed that the conditions of service of officers and employees do not constitute the functions of the U.P. Avas Evam Vikas Parishad.

In that context, it was clarified that "the State Government can always frame Rules in the exercise of powers under clause (nn) of subsection (1) of Section 94 of the 1965 Act for determining the conditions of service of the servants and officers of the Board. Whenever there is any inconsistency between Regulations framed under clause (f) of subsection (1) of Section 95 and the Rules framed under clause (nn) of subsection (1) of Section 94, the Rules will prevail and to that extent, the provisions of the Regulations which are repugnant to the Rules shall be void."

ASG Aishwarya Bhati appeared for the State Government, and Senior Counsel Nidhesh Gupta appeared for the Respondents.

A Supreme Court Bench had concluded that the view taken by the Supreme Court in the case of State of Uttar Pradesh vs Preetam Singh & Ors. needed reconsideration, and therefore it referred the matter to a larger Bench. The referenced matter was the subject matter in this case. 

The Uttar Pradesh Avas Evam Vikas Parishad (the Board) was established under Section 3 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965. The core issue was whether the act of determining service conditions of the employees and officers of the Board is one of the statutory functions of the Board. 

The Court had framed three questions for the consideration of a larger Bench, which were: 

(1) Whether the judgment of this Court in Preetam Singh's case laying down that conditions of service of officers and employees do not constitute the functions of the U.P. Avas Evam Vikas Parishad lays down the correct law more so when the judgment does not refer to provisions of Sections 8, 92, 94(2)(nn)of the 1965 Act?

(2) Whether the view expressed in Preetam Singh's judgment that functions of the U.P. Avas Evam Vikas Parishad are only the specific functions enumerated in Section 15 of 1965 Act which does not include the service conditions of employees of the Board lays down the correct law? Whereas the functions of the Board referred to in other provisions of Act, Rules and Regulations as has been expressly provided in Section 15(1) by use of expression "subject to the provisions of this Act and the Rules and Regulations" shall also be functions of the Board which induces service conditions of officers and employees as per Section 95(1)(f) of the 1965 Act. 

(3) Whether the State Government had no jurisdiction to issue directions regarding service conditions of officers and employees of the U.P. Avas Evam Vikas Parishad under the provisions of the 1965 Act and 1975 Act and all other enabling powers with the State Government?

The Supreme Court analysed the issues in detail, while also analysing the ancillary issues relating to pension and arrears of pay in terms of revised pay structure. Subsequently, the Court came to the following conclusions:

"(i) We uphold the decision of this Court in Preetam Singh's case with a modification that the State Government can always exercise the powers under clause (nn) of subsection (1) Section 94 of the 1965 Act for determining the conditions of service of the officers (other than the Housing Commissioner) and employees of the Board. If such power is exercised, those provisions of the Regulations framed under clause (f) of subsection (1) of Section 95 which are repugnant to the Rules, shall be void;

(ii) All the officers and employees of the Board who have not received the benefit of the old scheme till 07th September 2012 and have retired on or after 1st January 2006 shall be entitled to benefit of the new pension scheme as per the notification dated 19th May 2009 issued by the Board provided they are otherwise eligible. However, the officers and employees appointed on or after 1st April 2005 will be governed by the newly defined Contributory Pension Rules notified by the State Government; 

(iii) Those officers and employees of the Board who have retired on or after 1st January 2006 and who have not received benefits under the old scheme till date shall be entitled to interest as directed by this Court in paragraph 21 of the decision in Preetam Singh's case. Even those officers and employees who are entitled to benefit of the new pension scheme in terms of the notification dated 19th May 2009 and who have taken benefits under the old scheme pursuant to the interim order dated 07th September 2012, will be entitled to interest on differential amounts, as directed in terms of paragraph 21 of the decision of this Court in Preetam Singh's case;

(iv) Those officers and employees of the Board who have accepted the benefit under the old scheme before 7th September 2012 after giving an undertaking in terms of the Office Order dated 16th January 2004 shall not be entitled to the benefit of the new pension scheme made applicable as per the notification dated 19th May 2009;

(v) While calculating the pension amount payable to those who are entitled to the new pension scheme in terms of the notification dated 19th May 2009, the benefit of notional pay fixation in terms of the revised pay structure with effect from 1st January 2006 shall be provided; and 

(vi) All the officers and employees of the Board who are entitled to benefit of the revised pay structure in terms of the Government Order dated 14th January 2010 shall be provided the said benefit within a period of three months from today, if not provided earlier. While extending the said benefit, their pay shall be notionally determined as per the revised pay structure with effect from 1st January 2006. However, they shall not be entitled to arrears of salary as per the revised pay structure from 1st January 2006 till 14th January 2010. However, in the cases of the employees and officers who have already received the arrears, no recovery proceedings shall be initiated against them."

Accordingly, the impugned judgment and order stood modified, and the appeals were disposed with no order as to costs. 

Cause Title: State of Up & Ors. vs Virendra Kumar & Ors. 

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