State Of U.P. vs Virendra Kumar

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.6622­6623 OF 2022

State of U.P. & Ors. … Appellants

Versus

Virendra Kumar & Ors. ... Respondents

WITH

CIVIL APPEAL NO. 6626 OF 2022 AND CIVIL APPEAL NO. 6627 OF 2022

JUDGMENT

ABHAY S. OKA, J.

1. On 10th February 2020, for the reasons recorded, a Bench

of two Hon’ble judges of this Court came to the conclusion that Signature Not Verified Digitally signed by ASHA SUNDRIYAL the view taken by this Court in the case of State of Uttar Date: 2022.11.25 16:48:45 IST Reason: 1 C.A.Nos.6622-6623 of 2022 etc.

Pradesh v. Preetam Singh & Ors.1 (Preetam Singh’s case)

needs reconsideration. Under Section 3 of the Uttar Pradesh

Avas Evam Vikas Parishad Adhiniyam, 1965 (for short ‘the

1965 Act’), Uttar Pradesh Avas Evam Vikas Parishad (for short

‘the Board’) was established. The basic object of the

establishment of the Board was of framing and executing

housing and improvement schemes in the State of Uttar

Pradesh. The core issue on which the reference is made to a

larger Bench is whether the act of determining service

conditions of the employees and officers of the Board is one of

the statutory functions of the Board.

FACTUAL ASPECTS

2. On 21st February 1995, the Board resolved to extend the

pensionary benefits to its employees by replacing the existing

Contributory Pension Scheme (for short ‘the old pension

scheme’) with a pension/family pension/gratuity scheme (for

short ‘the new pension scheme’). On 16 th May 1996, the State

Government accorded its consent to the new pension scheme

1 2014 (15) SCC 774

2 C.A.Nos.6622-6623 of 2022 etc.

subject to the condition that the Board will not be entitled to

seek any financial assistance for the implementation of the new

pension scheme.

3. By a Resolution dated 5th November 1997, the Board

approved the new pension scheme. The new pension scheme

was based on the pension scheme of the State Government

applicable to civil servants. On 26 th November 1997, State

Government passed an order staying the implementation of the

new pension scheme. It appears that the State Government

appointed a committee of experts to examine the new pension

scheme of the Board. After considering the report of the

committee of experts, the State Government vide order dated

14th September 1999 vacated the stay granted earlier by

imposing a condition that the scheme shall be funded from the

contribution to provident fund made by the Board and that

neither the State Government nor the Board shall incur

financial liability by implementing the new pension scheme.

4. Preetam Singh and others who were the employees of the

Board, filed a writ petition in Allahabad High Court. The prayer

3 C.A.Nos.6622-6623 of 2022 etc.

in the petition was initially confined to the challenge to the

Government Order dated 14th September 1999. During the

pendency of the said petition, on 7 th May 2003, the State

Government reiterated its earlier stand of granting no objection

to the new pension scheme subject to the condition that no

financial assistance shall be provided to the Board for

implementing the said scheme. On 16 th January 2004, the

Board by an office order gave an option to its employees of

either opting for the new pension scheme or continuing with the

old pension scheme. In terms of the option given by the Board,

according to the case of the State Government, 582 employees

opted for the old pension scheme by filing necessary

undertakings. On 13th September 2005, the State Government

issued an order keeping its communication dated 7th May 2003

in abeyance on the ground that it was preparing comprehensive

guidelines regarding the payment of pension to the employees

of Public Sector Enterprises. By a communication dated 12 th

July 2007, the State Government purported to withdraw the

approval granted earlier to the new pension scheme of the

4 C.A.Nos.6622-6623 of 2022 etc.

Board. The writ petition filed by Preetam Singh and others

was amended and a challenge to the orders dated 13 th

September 2005 and 12th July 2007 was incorporated in the

petition. During the pendency of the petition filed by Preetam

Singh and others, the State Government issued an office

memorandum dated 8th December 2008 for applying a revised

pension, gratuity/family pension, and commutation scheme

with effect from 1st January 2006 for the benefit of its

employees. The said memorandum was issued in terms of the

recommendations of the U.P Pay Committee, 2008. However,

the employees of local bodies and public enterprises were

specifically excluded from the applicability of the said office

memorandum. Another office memorandum was issued on 8 th

December 2008 by the State Government for providing revised

pensionary benefits to those Government servants who had

retired before 1st January 2006. This order was made

applicable to the employees of Public Sector Enterprises who

were already getting pension prior to 1st January 2006. A

5 C.A.Nos.6622-6623 of 2022 etc.

Division Bench of Allahabad High Court by the judgment and

order dated 16th January 2009 allowed the writ petition filed by

Preetam Singh & others. The High Court quashed the orders

dated 13th September 2005 and 12th July 2007 to the extent to

which they related to the Board. A writ of mandamus was

issued directing the Board to implement the new pension

scheme in terms of its Regulations framed on 5 th November

1997.

5. In view of the decision of the High Court, a notification

dated 19th May 2009 was issued by the Board in the exercise of

powers under clause (f) of sub­section (1) of Section 95 of the

1965 Act. The notification recorded that the Board had decided

to implement the new pension scheme as admissible to the

officers and employees of the State Government in terms of the

Rules and Regulations set out in the said notification. The

Board directed that the new pension scheme shall come into

force and will apply to those officers who retired on or after 1 st

January 1996. However, it was stated that the Newly Defined

6 C.A.Nos.6622-6623 of 2022 etc.

Contributory Pension Rules of the State Government will be

applicable to those employees of the Board who have joined the

employment on or after 1st April 2005. The notification also

provided that the orders issued from time to time by the State

Government with respect to pension/ family pension/ gratuity

shall be applicable to the officers and employees of the Board.

6. The decision of the High Court was challenged by the

State Government before this Court in which the decision of

this Court in Preetam Singh’s case1 was rendered. It was

observed in paragraph 21 of the final judgment of this Court

that the interim order dated 7th August 2012 passed by this

Court had the effect of staying the notification dated 19 th May

2009. By the interim order of this Court dated 7 th September

2012, the employees of the Board were permitted to claim

benefits under the old pension scheme. However, it was

observed that the interim order will not come in the way of the

said employees agitating their claim and also supporting the

relief granted by the High Court.

7 C.A.Nos.6622-6623 of 2022 etc.

7. One of the main contentions canvassed by the State of

Uttar Pradesh before this Court in Preetam Singh’s case1 was

based on provisions of sub­section (1) of Section 2 of the U.P.

State Control Over Public Corporations Act, 1975 (for short ‘the

1975 Act’). Section 2(1) of the 1975 Act provides that every

statutory body established or constituted under any Uttar

Pradesh Act shall in the discharge of its functions be guided by

such directions on questions of policies as may be issued to it

by the State Government notwithstanding that no such power

has been expressly conferred by the statute establishing such a

statutory body on the State Government. The contention of the

State Government was that the orders issued on 13 th September

2005 and 12th July 2007 must be deemed to have been issued

in the exercise of powers under Section 2(1) of the 1975 Act.

8. While deciding Preetam Singh’s case1 on 24th September

2014, this Court referred to Section 15 of the 1965 Act which

exhaustively incorporates the functions of the Board. This

Court came to the conclusion that fixing conditions of service of

8 C.A.Nos.6622-6623 of 2022 etc.

its employees does not constitute a function of the Board.

Therefore, this Court held that the State Government had no

power to issue the directions contained in its orders dated 13 th

September 2005 and 12th July 2007. This Court also held that

clause (f) of sub­section (1) of Section 95 of the 1965 Act vests a

power in the Board to make Regulations for determining

conditions of service of its officers and servants. It was held

that the new pension scheme has been framed by the Board in

the exercise of power under clause (f) of sub­section (1) of

Section 95. While dismissing the Special Leave Petition filed by

the State Government, this Court referred to the notification

dated 19th May 2009 of the Board issued in the exercise of

power under clause (f) of sub­section (1) of Section 95 of the

1965 Act. This Court while dismissing the appeal preferred by

the State Government directed that all the eligible employees of

the Board will be governed by the said notification dated 19 th

May 2009. This Court directed the Board to release pensionary

benefits to retired employees governed by the notification dated

19th May 2009 within a period of three months. Paragraph 21

9 C.A.Nos.6622-6623 of 2022 etc.

of the decision containing the directions issued by this Court is

reproduced below:­

“21. It is also necessary for us to determine the consequence of the State of Uttar Pradesh, having approached this Court, to assail the impugned judgment dated 16­1­2009 [Preetam Singh v. State of U.P., 2009 SCC OnLine All 33 : (2009) 2 All LJ 702] . This Court having entertained the petition filed by the appellant, passed interim directions on 7­8­2012 [State of U.P. v. Preetam Singh, IA No. 7 in Civil Appeal No. 6307 of 2010, order dated 7­8­2012 (SC), wherein it was directed:“Taken on board. There shall be stay of the order passed in Writ Petition No. 1433 of 2011 dated 24­7­2012. IA No. 7 is disposed of. Registry is directed to list IA No. 4 on 27­8­ 2012, if it is in order.”] , which had the effect of staying the implementation of the directions issued by the High Court, namely, of staying the implementation of the Notification dated 19­5­2009. As a result, the employees governed by the Notification dated 19­5­2009, were paid their retiral dues under the Contributory Provident Fund Scheme. Since we have now affirmed the impugned judgment of the High Court, dated 16­1­ 2009 [Preetam Singh v. State of U.P., 2009 SCC OnLine All 33 : (2009) 2 All LJ 702] , it is apparent that all the eligible employees of the Vikas Parishad will be governed by the Notification dated 19­5­ 2009. They will therefore be entitled to the pensionary benefits from the date of their retirement. Undoubtedly, they have been denied the said retiral benefits, consequent upon the interim orders passed by this Court, at the

10 C.A.Nos.6622-6623 of 2022 etc.

behest of the State of Uttar Pradesh. In the above view of the matter, we direct the Vikas Parishad to release the pensionary benefits to the retired employees governed by the Notification dated 19­5­2009, within three months from today. While determining the pensionary benefits payable to the eligible retired employees up to date, if it is found that any of the retired employees is entitled to financial dues in excess of those already paid under the Contributory Provident Fund Scheme, the said employee(s) will be paid interest on the said amount @ 9% p.a. The burden of the aforesaid interest component on the differential amount will be discharged by the Vikas Parishad in the first instance. The same shall, however, be recovered from the State of Uttar Pradesh, who is solely responsible for the interest ordered to be paid to the employees concerned.”

(emphasis added)

9. On 16th October 2009, the State Government issued an order

sanctioning revised pay structure, pay band, and grade pay to

different categories of employees working in public enterprises/

corporations. The revised pay structure was incorporated in the

annexure to the said order. The Government Order stated that

necessary action shall be taken by the public enterprises/

corporations in consultation with the Public Enterprises

11 C.A.Nos.6622-6623 of 2022 etc.

Department/ Finance Department. It is also provided in the

Government Order that the execution of the Government Order

shall be made only after a proposal to that effect is approved by

the Board of Directors of the Public Sector Enterprises. On 30 th

November 2009, the Housing Commissioner of the Board

addressed a letter to the State Government for communicating the

proposal of the Board to apply the revised pay structure to its

employees. In response, on 14th January 2010, the State

Government issued a communication permitting the Board to

grant the revised pay structure according to the recommendations

of the 7th Report of the U.P Pay Committee, 2008 to its employees.

The State Government permitted the Board to grant the revised

pay structure to its employees as provided in the aforesaid

Government Order dated 16th October 2009. The said order was

issued on the basis of the recommendations of the Empowered

Committee. However, it was stated in that communication that

the benefit shall be calculated on a notional basis with effect from

1st January 2006 in the pay band and grade pay as per the table

annexed to the Government Order dated 16 th October 2009. It

12 C.A.Nos.6622-6623 of 2022 etc.

provided that the actual benefit shall be provided with immediate

effect i.e. from 14th January 2010. In short, the employees of the

Board were not entitled to arrears of pay as per the revised pay

structure with effect from 1st January 2006. They were entitled to

revised pay scales only on a notional basis from 1 st January 2006

and to the actual benefits only from 14th January 2010. Based on

the said communication, an Office Order was issued by the Board

on 23rd January 2010 for giving effect to the communication dated

14th January 2010. In fact, another Government Order was issued

on 15th September 2011 stating that in terms of the order dated

14th January 2010, pay scales of the employees of the Board will

be notionally revised with effect from 1 st January 2006 but the

actual benefits shall be extended only from 14th January 2010.

The said Government Order reiterates that the employees of the

Board will not be entitled to benefit of the revised pay structure for

the period of 1st January 2006 to 13th January 2010.

10. The State Government issued another order dated 05 th May

2015 to the Board communicating the decision of the Hon’ble

Governor to grant pensionary benefits to the employees of the

13 C.A.Nos.6622-6623 of 2022 etc.

Board in terms of the new pension scheme with retrospective

effect from 1st January 2006. The decision of the State

Government, inter alia, provided that the employees who were

employed on or before 31st March 2005 and who had not retired

till date shall be granted pension. It further provided that the

employees who had already retired and had taken benefits under

the old pension scheme will not be entitled to get a pension under

the new pension scheme. The Government directed that the

employees of the Board who have been employed on or after 1 st

April 2005 will not be entitled to grant of pension. In terms of the

Government Order of 05th May 2015, the Board issued Office

Order dated 13th May 2015.

11. There were two sets of writ petitions filed before the

Allahabad High Court. The first one was Writ Petition No.12645

of 2016 filed by certain employees of the Board. The following

prayers were made in the petition :

“(i) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to re­ determine the salary of the petitioners till their retirement and thereafter their pensionary benefits

14 C.A.Nos.6622-6623 of 2022 etc.

on the basis of Sixth Pay Commission Recommendation w.e.f.1.1.2006.

(ii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to apply the provisions of the Government Order No.1508 dated 8.12.2008 on the officers of the Parishad, while suitably reading down the restrictive provisions about its non­application on the employees of the U.P. Awas Evam Vikas Parishad in view of the Pension Regulations dated 19.5.2009 read with judgment and order of the Hon’ble Apex Court dated 23.9.2014.

(iii) to issue a writ, order or direction in the nature of mandamus commanding the respondents to re­ determine/re­fix the salary of the petitioners in terms of Sixth Pay Commission Recommendation w.e.f. 1.1.2006 till their retirement and thereafter re­ determine their pensionary benefits as per revised last pay drawn and pay arrears of salary and revised pensionary benefits from the date of their retirement till date, in accordance with G.O. dated 8.12.2008, after deducting the amounts already paid towards pensionary benefits of the petitioners, within a period of 2 months.

(iv) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to grant the benefit of maximum gratuity of Rs.10 lac to the petitioners as per Government Order dated 8.12.2008.

(v) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay arrears of salary & pensionary benefits calculated in terms of the Sixth Pay Commission Recommendation, including enhanced gratuity of Rs.10 lac, along with

15 C.A.Nos.6622-6623 of 2022 etc.

payment of interest at the prevailing Bank rates, within a period of 2 months.

(vi) to issue an ad­interim mandamus to the respondent authorities to pay the current pension of the petitioners in terms of Sixth Pay Commission Recommendation.”

Writ Petition No.10355 of 2017 was filed by another set of

employees of the Board for challenging the order dated 05 th May

2015 passed by the State Government and the consequential

order dated 13th May 2015 passed by the Board.

12. By the impugned judgment, the aforesaid two petitions were

disposed of. While disposing of the petitions, in paragraph 41,

the following directions were issued :

“41. Accordingly, both the writ petitions are allowed and the impugned orders dated 05.05.2015 and 13.05.2015 contained in Annexure No.1 and 2 to the Writ Petition o.126345 (S/B) of 2017 are quashed to the extent they are contrary to the judgment passed by the Hon’ble Apex Court in the case of State of U.P. vs. Preetam Singh and others : Civil Appeal No.6307 of 2010. A mandamus is issued to the respondents to grant benefit of arrears of salary payable to the employees of Parishad w.e.f. 1.1.2006 to 13.01.2010 and to fix their pension/ family pension and also release gratuity in accordance with the provisions of

16 C.A.Nos.6622-6623 of 2022 etc.

U.P. Avas Evam Vikas Parishad Regulations notified on 19th May, 2009, and in the light of the orders of the Hon’ble Supreme Court in Civil Appeal No.6307 of 2010 from the date of their entitlement alongwith interest @ 9% per annum within a period of two months from the date of production of certified copy of this order, failing which the petitioners shall be entitled and paid interest at the rate of 12% per annum.”

(emphasis added)

THE ORDER OF REFERENCE TO A LARGER BENCH

13. Now, we come to the order dated 10 th February 2020 passed

by this Court. A Bench of two Hon’ble Judges of this Court prima

facie found that the functions of the Board contemplated under

Section 15 of the 1965 Act were wide enough even to cover the act

of fixing service conditions of its employees. In paragraph 43, this

Court framed three questions for consideration of a larger Bench.

Paragraph 43 of the said order reads thus:

“43. Due to the above reasons we are of the view that with regard to three aspects i.e. (1), (2) and (3) as 42 noted above, the judgment in Preetam Singh’s case needs reconsideration. We formulate following questions to be considered by a larger Bench:

17 C.A.Nos.6622-6623 of 2022 etc.

(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?

SUBMISSIONS OF THE STATE GOVERNMENT AND THE BOARD

14. Ms. Aishwarya Bhati, the learned Additional Solicitor

General appearing for the State Government urged that the

18 C.A.Nos.6622-6623 of 2022 etc.

statutory functions of the Board include the function of fixing

terms and conditions of the employment of its employees. She

placed reliance on Section 92 of the 1965 Act which confers a

power on the State Government to issue directions to the Board

for carrying out the purposes of the 1965 Act. She urged that it

is the duty of the Board to comply with the directions issued by

the State Government. It was further submitted that apart from

Section 2(1) of the 1975 Act, there was sufficient power vesting in

the State Government under Section 8 of the Section 1965 Act to

control and put restrictions on the powers of the Board to appoint

officers and employees. The learned ASG invited our attention to

the notification dated 19th May 2009 by which the Board applied

the new pension scheme to the employees who retired on or after

1st January 1996. She pointed out that in the said notification, it

is specifically directed that the orders with respect to

pension/family pension/gratuity issued by the State Government

from time to time shall also be applicable to the officers and

employees of the Board. She pointed out that the said notification

was never challenged. She would, therefore, submit that the

19 C.A.Nos.6622-6623 of 2022 etc.

directions of the State Government impugned by the private

respondents cannot be faulted. After inviting our attention to the

interim order dated 7th September 2012 passed by this Court, the

learned ASG submitted that those who have unconditionally

opted for the old pension scheme prior to 7th September 2012

have no subsisting right to claim the pension in terms of the new

pension scheme. She submitted that the employees are not

entitled to salary as per the revised pay structure for the period

between 1st January 2006 to 13th January 2010 as per the

binding directions of the State Government. The learned senior

counsel representing the Board also made similar submissions.

THE SUBMISSIONS OF THE PRIVATE RESPONDENTS

15. The learned counsel appearing for the respondents in Civil

Appeal Nos.6624 and 6625 of 2022 also made legal submissions.

We may note here that while reserving the judgment on 15 th

September 2022, we had detagged the said appeals. Nevertheless,

we are also considering the submissions made by the

respondents in the detagged appeals as regards the three

questions of law that are required to be decided. The submission

20 C.A.Nos.6622-6623 of 2022 etc.

of the learned counsel is that as several employees were facing

financial hardships after their retirement, they had no option but

to give the undertakings to accept the old pension scheme and

not opt for the new pension scheme. Considering this situation,

this Court by an interim order passed in Preetam Singh’s case1

had directed that even if employees have taken benefit of the old

pension scheme by giving an undertaking, they will be entitled to

the benefit of the new pension scheme in terms of the notification

dated 19th May 2009. The learned counsel invited our attention to

the subsequent order dated 5th May 2015 passed by the State

Government by which the benefit of the new pension scheme was

denied to those who opted to join the employment of the Board on

or after 1st April 2005. His submission is that this direction is

discriminatory which creates two classes of pensioners without

any rational basis. He relied upon a decision of this Court in the

case of D.S. Nakara & Ors. v. Union of India 2 as well as another

decision in the case of V. Sukumaran v. State of Kerala & Anr. 3.

2 1983 (1) SCC 305 3 2020 (8) SCC 106

21 C.A.Nos.6622-6623 of 2022 etc.

He would, therefore, submit that reconsideration of the view

taken in Preetam Singh’s case1 is not at all warranted.

16. Shri Nidhesh Gupta, the learned senior counsel stated that

he represents only those respondents who had never opted for the

old pension scheme and had not received any amount under the

old scheme. He submitted that under clause (f) of sub­section (1)

of Section 95 of the 1965 Act, the Board has a power to make

Regulations providing for conditions of service of officers and

servants of the Board. Inviting our attention to sub­section (2) of

Section 95 of the 1965 Act, Shri Gupta would submit that only

when any Regulation framed by the Board is repugnant to the

Rules framed by the State in the exercise of powers under Section

94, the Rules will prevail. He submitted that admittedly the State

Government has not exercised the Rule making power under

Section 94. He urged that under clause (nn) of sub­section (2) of

Section 94, the State Government has a power to frame Rules

concerning any matter for which Regulations can be framed under

Section 95. He submitted that it is well settled that when an

enactment requires that a certain thing should be done in a

22 C.A.Nos.6622-6623 of 2022 etc.

certain way, the thing must be done in that way or not at all. He

relied upon various decisions in this behalf, viz., A.R. Antulay v.

Ramdas Sriniwas Nayak & Anr.4; Dhananjaya Reddy etc. v.

State of Karnataka5; and Gujarat Urja Vikas Nigam Ltd. v.

Essar Power Ltd.6.

17. Inviting our attention to Section 2(1) of the 1975 Act, he

submitted that the power conferred by the said provision on the

State Government to issue directions is a general power. This

power is confined to issuing directions on questions of policies. He

submitted that the said power can be exercised in relation to the

discharge of functions of the Board. He urged that Section 15 of

Chapter III of the 1965 Act lays down the functions of the Board.

He pointed out that Chapter III requires the Board to frame

various schemes. He urged that none of the clauses (a) to (p) of

Section 15 lays down that the appointment of employees and

fixing their service conditions is a function of the Board under the

1965 Act. He urged that in the exercise of power under Section

4 (1984) 2 SCC 500 5 (2001) 4 SCC 9 6 (2008) 4 SCC 755

23 C.A.Nos.6622-6623 of 2022 etc.

2(1) of the 1975 Act, directions cannot be issued regarding the

service conditions of officers and employees of the Board.

18. By referring to Section 7 of the 1965 Act, he submitted that

sub­section (2) thereof clearly provides that the conditions of

service of the Housing Commissioner shall be such as may be

prescribed. Relying upon the definition of the word ‘prescribed’ in

clause (n) of Section 2, he submitted that the conditions of service

of the Housing Commissioner have to be prescribed by the State

Government by exercising the Rule making power. However,

Section 8 which provides for the appointment of officers and

servants of the Board does not contain such a provision. He

submitted that the special or general orders of the State

Government contemplated by sub­section (1) of Section 8 can be

issued only regarding the mode and manner of appointment of the

officers and servants of the Board and the same have nothing to

do with service conditions. The power of the State Government to

issue general or special orders is only for the purpose of imposing

control and restrictions on the appointment of the officers and

servants of the Board. Therefore, sub­section (1) of Section 8

24 C.A.Nos.6622-6623 of 2022 etc.

cannot be construed to mean that by issuing general or special

orders, the State Government can determine the conditions of

service of the officers and servants of the Board. He submitted

that as two different expressions have been used in Sections 7 and

8 of the 1965 Act, different meanings will have to be assigned to

the said different expressions. On this issue, he relied upon a

decision of this Court in the case of DLF Qutab Enclave Complex

Educational Charitable Trust v. State of Haryana7.

19. He urged that the power under sub­section (2) of Section 92

can be exercised by the State Government by issuing directions

that are necessary for carrying out the purposes of the 1965 Act.

He submitted that in any event, in the present case, statutory

Regulations have been framed by the Board dealing with the grant

of pensionary benefits.

20. He submitted that the power to issue directions under

Section 2(1) of the 1975 Act is a general power and the power

under Sections 8 and 92 of the 1965 Act is a specific or special

power. Relying upon a decision of this Court in the case of

7 (2003) 5 SCC 622

25 C.A.Nos.6622-6623 of 2022 etc.

Commercial Tax Officer, Rajasthan v. Binani Cements Ltd. &

Anr.8, he urged that the specific provisions under the 1965 Act

will prevail over the general provision under Section 2(1) of the

1975 Act.

21. He relied upon a decision of this Court in the case of

Harwindra Kumar v. Chief Engineer, Karmik & Ors.9. He

submitted that executive order cannot override the exercise of

power made by the Board by framing Regulations concerning the

new Pension Scheme. He submitted that if the submission of the

State Government that by issuing executive orders it can override

the provisions of the Regulations framed under Section 95 of the

1965 Act is accepted, the entire scheme of Sections 94 and 95 of

the 1965 Act will be rendered completely redundant. Relying upon

a decision of this Court in the case of Institute of Chartered

Accountants of India v. Price Waterhouse & Anr.10, he would

submit that such an interpretation cannot be accepted.

22. He pointed out that if the pension is not granted on the basis

of revised pay scales, the very purpose of the grant of pension will 8 (2014) 8 SCC 319 9 (2005) 13 SCC 300 10 (1997) 6 SCC 312

26 C.A.Nos.6622-6623 of 2022 etc.

be defeated. He submitted that employees cannot be divided into

two classes – one of those who retired pre­1996 and others of who

retired post­1996. He submitted that there was no justification for

the Bureau of Public Enterprises for writing a letter dated 14 th

January 2010 conferring the benefit of the revised pension not

from 1st January 2006 but from 14th January 2010. He submitted

that no explanation has been offered either before the High Court

or this Court for fixing the date of 14 th January 2010. He relied

upon a decision of this Court in the case of State of Rajasthan &

Anr. v. Prem Raj11.

23. He pointed out that the benefit of the revised pension was

given by the State Government to the employees of U.P Power

Corporation with effect from 1st January 2006. To the employees

of U.P Jal Nigam, the benefit of the revised pension was given only

from 12th April 2010. The employees of Jal Nigam filed a writ

petition before the High Court which was allowed by holding that

the employees were entitled to get the benefit of the revised

pension from 1st January 2006. The said decision has become

11 (1997) 10 SCC 317

27 C.A.Nos.6622-6623 of 2022 etc.

final as a Special Leave Petition filed by the State Government

against the said order has been dismissed on 20 th May 2022. He

submitted that the Board has adequate resources to bear the

burden of payment of revised pension from 1 st January 2006. His

submission is that the law laid down by this Court in the case of

Preetam Singh’s case1 does not call for any reconsideration at all.

CONSIDERATION OF THE QUESTIONS FRAMED

24. The three questions framed under Order dated 10 th February

2020 are inter­connected. For deciding these three questions, we

will have to decide the core issues whether the functions of the

Board are confined to those which are set out in Section 15 of the

1965 Act and whether the appointment of officers and employees

of the Board and the determination of their conditions of service

constitute the functions of the Board. Another question that will

have to be addressed is as regards the power, if any, of the State

Government to issue directions to the Board concerning the

determination of the conditions of service of its officers and

servants.

28 C.A.Nos.6622-6623 of 2022 etc.

POWER TO DETERMINE THE CONDITIONS OF SERVICE OF THE OFFICERS AND SERVANTS OF THE BOARD

25. We have perused the provisions of the 1965 Act. Chapter II

thereof has the heading, “Establishment and conduct of business

of the Board”. Chapter II consists of Sections 3 to 14. Section 3

provides for the constitution of the Board. Section 7 provides for

the appointment of a Housing Commissioner. Section 7 reads

thus :

“7. Provisions relating to Housing Commissioner.­ (1) There shall be a Housing Commissioner appointed by the State Government for the purposes of this Act.

(2) The conditions of service of the Housing Commissioner shall be such as may be prescribed.

He shall be remunerated from the Board’s fund.

(3) The State Government may, if it is of opinion that special circumstances so require, appoint the Housing Commissioner to be the Adhyaksh in addition to his own duties.

(4) The State Government may also appoint the Housing Commissioner as an authority under any other law for the time being in force.”

(emphasis added)

29 C.A.Nos.6622-6623 of 2022 etc.

Section 8 deals with “Appointment of Officers and Servants”.

Section 8 reads thus :

“8. Appointment of officers and servants.­(1) Subject to such control and restrictions as may from time to time be imposed by the State Government, by special or general orders, the Board may appoint such officers and servants as it considers necessary for the efficient performance of its functions.

(2) the Board may, with the previous approval of the State Government appoint a servant of the Central or the State Government or of a local authority on any of the posts under it on such terms and conditions as may be agreed upon.”

(emphasis added)

As provided in sub­section (1) of Section 7, the Housing

Commissioner has to be appointed by the State Government. Sub­

section (2) of Section 7 provides that the conditions of service of

the Housing Commissioner must be prescribed by the Rules.

Rule­making power under Section 94 vests with the State

Government. Clause (b) of sub­section (2) of Section 94 empowers

the State Government to frame Rules determining the conditions

of service of the Housing Commissioner. The obvious reason for

conferring the power to determine service conditions of the

30 C.A.Nos.6622-6623 of 2022 etc.

Housing Commissioner on the State Government appears to be

that the State Government is the appointing authority.

26. In contrast, sub­section (1) of Section 8 provides that

subject to control and restrictions imposed from time to time by

the State Government by special or general orders, the Board may

appoint such officers and servants as it considers necessary for

the efficient performance of its functions. There is a marked

distinction between the language used by sub­section (2) of

Section 7 and sub­section (1) of Section 8 though both provisions

deal with the power to appoint officers of the Board. Thus, two

different expressions or terminologies have been used in Sections

7 and 8. Therefore, the legislature intended to convey different

meanings. Sub­section (1) of Section 8 does not provide that the

State Government shall have the power to determine the

conditions of service of officers and employees of the Board. The

power to control the appointment and the power to put restrictions

are distinct and different from the power to determine the service

conditions of the officers and servants of the Board. The control of

the State Government and the power to impose restrictions as

31 C.A.Nos.6622-6623 of 2022 etc.

provided in sub­section (1) of Section 8 will extend to the creation

of posts of officers and servants of the Board. The control can be

exercised by directing the creation of different categories of posts.

The control can be also exercised by determining the number of

posts of different categories. In this context, Sections 94 and 95 of

the 1965 Act are also relevant. Under sub­section (1) of Section

94, the State Government retains the general Rule making power

of framing Rules for carrying out the purposes of the Act. Without

prejudice to the generality of the power under sub­section (1), sub­

section (2) of Section 95 lays down the topics and subjects on

which Rule­making power can be exercised. One of the specific

powers conferred by clause (b) of sub­section (2) of Section 94 on

the State Government, as pointed out earlier, is of framing Rules

for laying down conditions of service of the Housing

Commissioner. Clause (nn) of sub­section (2) of Section 94 reads

thus :

“94. Power to make Rules.­ (1) … … … … (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for­ …………

32 C.A.Nos.6622-6623 of 2022 etc.

………… (nn) any matter for which regulation may be made by the Board under Section 95;

… … … …”

Thus, clause (nn) of sub­section (2) of Section 94 confers power on

the State Government to frame Rules in respect of any matter for

which regulations can be framed by the Board. Section 95 which

confers the powers on the Board to frame Regulations reads thus :

“95. Power to make regulations.­(1) The Board may, by notification in the Gazette, make regulations providing for –

(a) ……………………………………………………;

(b) ……………………………………………………;

(c) ……………………………………………………;

(d) ……………………………………………………;

(e) the duties of officers and servants of the Board;

(f) the conditions of service of officers and servants of the Board;

(g) …………………………………………………….;

(h) …………………………………………………….;

(i) …………………………………………………….;

(j) …………………………………………………….;

(k) ……………………………………………………;

(l) ……………………………………………………;

(m) ……………………………………………………;

(n) any other matter which is to be or may be provided for by regulations under this Act or the rules.”

(emphasis added)

33 C.A.Nos.6622-6623 of 2022 etc.

Clause (f) of sub­section (1) of Section 95 specifically empowers

the Board to frame Regulations governing conditions of service of

officers and servants of the Board. Under clause (b) of sub­section

(2) of Section 94, the State Government has a power to determine

the conditions of service of the Housing Commissioner. Thus, the

Legislature has specifically incorporated in Section 7 that the

State Government shall have the power to determine the

conditions of service of the Housing Commissioner. However, such

a provision is conspicuously absent in Section 8 dealing with the

appointment of servants and officers of the Board. The reason is

that the power to determine the service conditions of the other

officers and servants has been conferred on the Board which can

be exercised by making Regulations.

27. In view of sub­section (2) of Section 95 read with clause (nn)

of sub­section (2) of Section 94, Regulations, if any, framed by the

Board for determining the conditions of services of its officers and

servants are always subject to the Rules which may be framed by

the State Government by exercising the power under clause (nn) of

sub­section (1) of Section 94. Whenever there is any inconsistency

34 C.A.Nos.6622-6623 of 2022 etc.

between the Regulations framed under clause (f) of sub­section (1)

of Section 95 and the Rules framed under clause (nn) of sub­

section (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. To put it differently, the power to determine the

conditions of service of the officers (except the Housing

Commissioner) and servants of the Board vests in the Board, and

the said power can be exercised only by framing Regulations

under clause (f) of sub­section (1) of Section 95. So long as Rules

are not framed by the State Government under clause (nn) of sub­

section (1) of Section 95 for overriding the provisions of the

Regulations framed by the Board for prescribing the service

conditions, the provisions of Regulations shall always govern the

field. Except for the exercise of the Rule making power under

clause (nn) of sub­section (1) of Section 94, there is no specific

power conferred under the 1965 Act, or for that matter under the

1975 Act, on the State Government to nullify or to override the

conditions of service of its officers and servants determined by the

35 C.A.Nos.6622-6623 of 2022 etc.

Board by the Regulations framed in the exercise of powers under

clause (f) of sub­section (1) of Section 95.

FUNCTIONS OF THE BOARD

28. Now coming to the issue of the functions of the Board, we

may note that Chapter III of the 1965 Act has the heading

“Functions and Powers of the Board”. As noted earlier, specific

provisions regarding the appointment of the Housing

Commissioner, officers and servants of the Board find a place in

Chapter II and not in Chapter III. As specifically provided in

clause (1) of Section 8, the Board is empowered to appoint such

officers and servants as it considers necessary for the efficient

performance of its functions. This is one factor that suggests that

the appointment of officers and servants is not a function of the

Board but their appointments are required to be made for the

efficient performance of its functions.

29. Chapter III dealing with “Functions and Powers of the Board”

comprises of Sections 15 to 49. Section 15 has the heading

“Functions of the Board” which reads thus :

36

C.A.Nos.6622-6623 of 2022 etc.

“15. Functions of the Board.­(1) Subject to the provisions of this Act and the rules and regulations, the functions of the Board shall be­

(a) to frame and execute housing and improvement schemes and other projects;

(b) to plan and co­ordinate various housing activities in the State and to ensure expeditious and efficient implementation of housing and improvement schemes in the State;

(c) to provide technical advice for and scrutinise various projects under housing and improvement schemes sponsored or assisted by Central Government or the State Government;

(d) to assume management of such immovable properties belonging to the State Government as may be transferred or entrusted to it for this purpose;

(e) to maintain, use, allot, lease, or otherwise transfer plots, buildings and other properties of the Board or of the State Government placed under the control and management of the Board;

(f) to organise and run workshops and stores for the manufacture and stock­piling of building materials;

(g) on such terms and conditions as may be agreed upon between the Board and the State Government, to declare houses constructed by it in execution of any scheme to be houses subject to the U.P. Industrial Housing Act, 1955 (U.P. Act No.XXIII of 1955);

(h) to regulate building operations;

(i) to improve and clear slums;

(j) to provide roads, electricity, sanitation, water­ supply and other civic amenities and essential services in areas developed by it;

(k) to acquire movable and immovable properties for any of the purposes before mentioned;

37 C.A.Nos.6622-6623 of 2022 etc.

(l) to raise loans from the market, to obtain grants and loans from the State Government, the Central Government, local authorities and other public corporations, and to give grants and loans to local authorities, other public corporations, housing co­operative societies and other persons for any of the purposes before mentioned;

(m) to make investigation, examination or survey of any property or contribute towards the cost of any such investigation, examination or survey made by any local authority or the State Government;

(n) to levy betterment fees;

(o) to fulfil any other obligation imposed by or under this Act or any other law for the time being in force; and

(p) to do all such other acts and things as may be necessary for the discharge of the functions before mentioned.

(2) Subject to the provisions of this Act and the rules and regulations, Board may undertake, where it deems necessary, any of the following functions, namely­

(a) to promote research for the purpose of expediting the construction of and reducing the cost of buildings;

(b) to execute works in the State on behalf of public institutions local authorities and other public corporations, and departments of the Central Government and the State Government;

(c) to supply and sell building materials;

(d) to co­ordinate, simplify and standardise the production of building materials and to encourage and organise the prefabrication and mass production of structural components;

(e) with a view to facilitating the movement of the population in and around any city, municipality,

38 C.A.Nos.6622-6623 of 2022 etc.

town area or notified area to establish, maintain and operate any transport service; to construct, widen strengthen or otherwise improve roads and bridges and to give financial help to others for such purposes;

(f) to do all such other acts and things as may be necessary for the discharge of the functions before mentioned.”

As the appointments of officers and servants of the Board are dealt

with by Sections 7 and 8 in Chapter II, the same do not find a

place in the functions of the Board set out either in Section 15 or

in any other Section in Chapter III. There are provisions

incorporated in Chapter III dealing with various schemes and the

powers of the Board which can be exercised for the implementing

the schemes.

30. Chapter V of the 1965 Act provides for the Board of acquiring

and disposing of land for the purposes of the Act. Under Section

59, the Board is empowered to issue debentures. Under Section

58(3), the Board is entitled to raise loans for the purposes of the

Act. Obviously, acquiring and selling the property, issuing

debentures, and raising loans cannot be the functions of the

Board. These powers have been conferred by Chapter V to enable

39 C.A.Nos.6622-6623 of 2022 etc.

the Board to effectively discharge its functions and to exercise its

powers specified in Chapter III. The nature of the functions of a

statutory body like the Board will always depend on the object of

establishing such a body. The appointment of officers and

servants needs to be made for the efficient performance of the

specific functions of the Board. The exercise of power to appoint

servants and officers of the Board and determination of their

service conditions cannot constitute the functions of the Board.

The powers under Chapter V and the power of appointing officers

and servants under Sections 7 and 8 of Chapter II need to be

exercised for ensuring proper discharge of the functions of the

Board as well as for the exercise of the powers set out in Chapter

III. We are, therefore, of the considered view that the appointment

of officers and servants and determination of their service

conditions cannot constitute functions of the Board.

POWER OF THE STATE GOVERNMENT TO ISSUE DIRECTIONS TO THE BOARD REGARDING THE DETERMINATION OF THE SERVICE CONDITIONS OF THE BOARD

40 C.A.Nos.6622-6623 of 2022 etc.

31. Section 92 which provides for Control of the State

Government over the Board is a part of Chapter X under the

heading “External Control”. Section 92 reads thus :

“92. Control of the State Government over the Board and other local authorities.­(1) The Board shall­

(a) submit to the State Government such reports and returns in such forms and at such intervals as may be prescribed;

(b) furnish to the State Government such documents, returns, statements, estimates or other information regarding any matter under the control of the Board as may be directed by the State Government.

(2) The State Government may give the Board such directions as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall thereupon be the duty of the Board to comply with such directions.

(3) Without prejudice to other provisions of this Act, and notwithstanding anything contained in any other law for the time being in force, the State Government may give any local authority such directions as in its opinion are necessary or expedient for enabling the Board to carry out the purposes of this Act; and thereupon it shall be the duty of the local authority to comply with such directions.”

(emphasis added)

41 C.A.Nos.6622-6623 of 2022 etc.

The power under sub­section (2) of section 92 is to be exercised for

issuing directions for carrying out the purposes of the 1965 Act.

The issue is whether the State Government can exercise the power

under sub­section (2) of Section 92 to override statutory

Regulations framed by the Board in the exercise of powers under

clause (f) of sub­section (1) of Section 95. If the State Government

desires to override or nullify such Regulations, there is a specific

provision under the said Act of 1965 which enables the State

Government to do so. On a conjoint reading of clause (nn) of sub­

section (1) of Section 94 and sub­section (2) of Section 95, the

State Government has the power to frame Rules determining the

service conditions of the officers and servants of the Board and

once the Rules are framed by the State Government in this behalf,

the provisions of the Regulations framed by the Board will apply

only to the extent to which they are not repugnant to the Rules.

Service conditions will necessarily include salary, perquisites,

allowances, retirement benefits such as pension, etc. The

Regulations framed by the Board under clause (f) of sub­section

(2) of Section 95 have a force of law. On a plain reading of sub­

42 C.A.Nos.6622-6623 of 2022 etc.

section (2) of Section 92, by no stretch of the imagination, by

issuing directions, the State Government can nullify the statutory

Regulations framed under Section 95. More so, when the 1965

Act itself specifically enables the State Government to nullify the

Regulations by exercising the Rule making power. As the scheme

of the 1965 Act specifically provides that Regulations framed

under Section 94 can be overridden by framing Rules in

accordance with clause (nn) of sub­section (1) of Section 94, the

act of overriding the Regulations must be done only by framing the

Rules and not in any other manner. This view is supported by a

series of decisions of this Court taking a consistent view that

where an enactment requires to do a certain thing in a certain

way, the thing must be done in that way and in no other manner.

There are several decisions taking that view ending with the

decision of this Court in the case of Gujarat Urja Vikas Nigam6.

However, the locus classicus on this point is the well­known

decision of the Privy Council in the case of Nazir Ahmed v. The

King Emperor12. It was held by Privy Council that

12 1936 SCC OnLine PC 41

43 C.A.Nos.6622-6623 of 2022 etc.

“where a power is given to do certain things in a certain

way, the things must be done in that way and not at all. Other

methods of performance are certainly forbidden”.

The upshot of the aforesaid discussion is that the State

Government has no power to issue directions under sub­section

(2) of Section 92 to nullify or override the Regulations framed by

the Board in the exercise of powers under clause (f) of sub­section

(1) of Section 95.

32. Another argument of the State Government is based on sub­

section (1) of Section 15 which opens with an expression “subject

to the provisions of this Act and the rules and regulations”. By

use of the said expression, the exercise of the power to frame

Regulations for determining the conditions of service of officers

and servants does not become a function of the Board. The

meaning of the opening part of sub­section (1) of Section 15 is that

the functions of the Board must be discharged subject to the

constraints of the Rules and Regulations framed under the 1965

Act.

44 C.A.Nos.6622-6623 of 2022 etc.

33. Next limb of the argument of the State Government is based

on Section 2(1) of 1975 Act. Section 2(1) reads thus :

"2. (1) Power to issue directions to statutory bodies.­Every statutory body (by whatever name called), established or constituted under any Uttar Pradesh Act, excepting Universities governed by the Uttar Pradesh State Universities Act, 1973, as re­ enacted and amended by the Uttar Pradesh University (re­enactment and Amendment Act), 1974, shall, in the discharge of its functions, be guided by such directions on questions of policies, as may be given to it by the State Government, notwithstanding that no such power has expressly been conferred on the State Government under the law establishing or constituting such statutory body."

(emphasis added)

On a plain reading of the aforesaid provision, the power to issue

directions vested in the State Government can be exercised only

for issuing directions confined to questions of policies. The

directions can be issued confined to policies concerning the

discharge of the functions of the Statutory Body. The directions

issued by the State Government on the questions of policies guide

every statutory body in the discharge of its functions. For the

reasons we have already recorded while dealing with sub­section

45 C.A.Nos.6622-6623 of 2022 etc.

(2) of Section 92 of the 1965 Act, even the power under Section

2(1) of the 1975 Act cannot be invoked to nullify the statutory

Regulations framed by the Board which have a force of law. That

can be done only by exercising the Rule making power under

clause (nn) of sub­section (1) of Section 94 of the 1965 Act. The

power under Section 2(1) of the 1975 Act is the general power that

must yield to the special powers conferred by the 1965 Act. The

power under sub­section (1) of Section 2 is different and distinct

from the power to frame statutory Rules.

CONCLUSIONS ON THE THREE QUESTIONS

34. The aforesaid discussion is sufficient to answer the three

questions framed. Subject to what we have held above, we concur

with the view taken by this Court in Preetam Singh’s case1. Our

answers to the three questions are as under :

Q.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

46 C.A.Nos.6622-6623 of 2022 etc.

law more so when the judgment does not refer to provisions

of Sections 8, 92, 94(2)(nn)of the 1965 Act ?

A: The decision lays down the correct proposition of law.

Q.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 the 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.

A: The first part of the question is answered in the

affirmative. The functions of the Board are as specified in

Section 15 and other relevant sections in Chapter III of the

1965 Act. The second part is answered in the negative.

47 C.A.Nos.6622-6623 of 2022 etc.

Q.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?

A: Answered in affirmative. But 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.

CONSIDERATION OF THE ANCILLARY ISSUES CONCERNING THE RELIEFS GRANTED UNDER THE IMPUGNED JUDGMENT

48 C.A.Nos.6622-6623 of 2022 etc.

35. After having decided the questions, we are of the view that

Civil Appeals can be decided in terms of our findings instead of

sending them back to the Bench of two Hon’ble Judges.

PENSION

36. Now, we proceed to deal with the ancillary issues. Now

coming to the new pension scheme, an Office Order was issued on

16th January 2004 by the Board recording that a proposal for

framing a scheme of pension was under consideration. The Office

Order dated 16th January 2004 provided that those employees who

were not interested in opting for the new pension scheme must file

an affidavit on stamp paper of Rs.10/­. In the said affidavit, it

must be clearly and specifically asserted that the beneficiary was

not interested in the new pension scheme and the entire amount

deposited by him as his share along with Board’s share should be

paid to the beneficiary. It was also provided that the affidavit must

state that in the future, the beneficiary will not claim pensionary

benefits before any authority or the Court. According to the stand

taken by the State Government, total of 582 employees/officers

opted for the old scheme by filing affidavits/undertakings. The

49 C.A.Nos.6622-6623 of 2022 etc.

State Government has placed on record a copy of the affidavit of

respondent no.1 – Virendra Kumar in one of the appeals. It is not

disputed that all the affidavits of the employees who decided not to

opt for the new pension scheme are in the same format. In the

affidavit, it was incorporated that the employee was not interested

at all in the pension scheme and he was interested in taking

payments under the old scheme. It is specifically stated that he

will not make any claim in respect of the new pension scheme.

37. After the State Government accorded its approval, on 05 th

November 1997 the Board passed a Resolution approving the new

pension Scheme. The High Court while allowing the petitions filed

by Preetam Singh and others, directed the Board to implement the

new pension scheme in terms of its decision dated 05 th November

1997. High Court allowed the petition on 16 th January 2009. For

giving effect to the decision, on 19th May 2009, the Board issued a

notification recording that in the exercise of the powers under

clauses (f) and (n) of sub­section (1) of Section 95 of the 1965 Act,

it has decided that the pension scheme and gratuity admissible to

the officers and servants of the State Government shall be

50 C.A.Nos.6622-6623 of 2022 etc.

admissible to the employees of the Board. The relevant part of the

said notification reads thus :

“…. …. ….

Now therefore, the U.P. Avas Evam Vikas Parishad, in exercise of the power under clause (f)(i) & (n) of sub­section (1) of Section 95 of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act 1 of 1966) has decided that the Pension/Family Pension and Gratuity admissible to the officers and employees of State Government, which is governed by the following rules, schemes and Government orders shall also be admissible (excluding Pension commutation) to the officer and employees of the U.P. Avas Evam Vikas Parishad :

1. Civil Service Regulations as applicable in UP. As amended

2. Uttar Pradesh Liberalized Pension Rules, 1961 do

3. U.P. Retirement Benefit Rules, 1961 do

4. New Family Pension Scheme, 1965 do

5. All orders of finance department of U.P. Government as related to pension/ family pension/Gratuity do

6. Newly defined Contributory Pension rules According to notification no.Sa­3­379/ Das­2005­301(9)/2003, dated March 28, 2005 applicable to officers and employees of State Govt., who joined services on April 01, 2005 on onwards do

The orders with respect to the Pension/Family Pension/Gratuity issued time to time by the State Govt. shall also be applicable to the officers and employees of U.P. Avas Evam Vikas Parishad.

51 C.A.Nos.6622-6623 of 2022 etc.

It has also been decided by the Parishad that General Provident Funds Rules, 1985, shall be applicable to the officer and employees of U.P. Avas Evam Vikas Parishad instead of Contributory Provident Fund (CPF) Regulations, 1973.

In GPF Rules and Govt. Rules/Orders issued in this regard, ‘Govt.’ means the ‘U.P. Avas Evam Vikas Parishad’, ‘Accountant General’ means ‘finance Controller of U.P. Avas Evam Vikas Parishad’ & ‘Head of Department’ means ‘Housing Commissioner’.

The State Government shall not provide any financial assistance for the implementation of the said Pension Scheme.

Contents of the notification shall come into force w.e.f. January 1, 1996 and such officers and employees of Avas Evam Vikas Parishad who have retired on or after the said date shall be benefited with the said decision.

Newly defined Contributory Pension Rules notified by the State Government shall be applicable to those employees who have joined Parishad services on April 01, 2005 or onwards.”

(emphasis added)

Thus, the new pension scheme was retrospectively brought into

force from 1st January 1996 and was made applicable to the

employees and officers of the Board who retired on or after that

date. It is also recorded therein that the newly defined

52 C.A.Nos.6622-6623 of 2022 etc.

Contributory Pension Rules notified by the State Government shall

be applicable to those employees of the Board who have joined the

employment from 1st April 2005 onwards. Thus, the applicability

of the new pension scheme was confined to the officers and

employees who retired on or after 1 st January 1996. The officers

and employees appointed on or after 1 st April 2005 were excluded

from the applicability of the new pension scheme. We must note

here that the notification dated 19th May 2009 has become final

and in none of the petitions which are the subject matter of these

appeals, the same was challenged. In fact, in Writ Petition

No.10355 of 2017, there was a prayer to issue a mandamus to

implement the notification. Moreover, in paragraph 21 of the

decision of this Court in Preetam Singh’s case1, this Court issued

a mandate to act upon the said notification. The notification

dated 19th May 2009 specifically states that the orders with

respect to the pension/ family pension/ gratuity issued from time

to time by the State Government shall be applicable to the officers

and servants of the Board. Thus, only those employees of the

Board who have retired on or after 1st January 2006 will be

53 C.A.Nos.6622-6623 of 2022 etc.

entitled to the benefit of the new pension scheme and those who

are appointed on or after 1st April 2005 will be governed by

another set of Rules as mentioned in the notification dated 19 th

May 2009.

38. In the Special Leave Petition filed by the State Government

against the judgment of the Allahabad High Court in the case of

Preetam Singh and others, an interim order was passed by this

Court on 7th August 2012 which had the effect of staying the

judgment of the High Court and the notification dated 19 th May

2009. The further interim order dated 7 th September 2012

recorded that if the employees of the Board, who have retired from

service, claim Contributory Provident Fund and other retiral

benefits (as per the old scheme), the Board shall pass appropriate

orders granting the benefit under the old scheme. However, it was

clarified that the said interim order will not come in the way of the

respondents before this Court agitating their claim and supporting

the reliefs granted by the Allahabad High Court. Paragraph 21 of

the judgment records that by the interim order, the notification

dated 19th May 2009 was stayed, and therefore, no one could get

54 C.A.Nos.6622-6623 of 2022 etc.

pension under the new scheme. Therefore, the interim order was

passed which enabled the employees who had not received

benefits either under the old scheme or the new pension scheme,

to take benefits under the old scheme. This interim order was

made as no one could get the benefit of the old scheme as a result

of the stay granted to the notification dated 19 th May 2009. The

interim order dated 7th September was thus applicable only to

those employees who had not taken benefits under the old scheme

till 7th September 2012. Obviously, those officers and employees of

the Board who opted for the old scheme by filing affidavits in

terms of the Office Order dated 16 th January 2004 and received

the benefits under the old scheme before the interim order dated

07th September 2012 was passed, are disentitled to claim pension

under the new pension scheme. Those officers and employees of

the Board who opted to take benefits under the old scheme after

07th September 2012 will be entitled to benefit of the direction

issued by this Court in paragraph 21 of the decision in Preetam

Singh’s case1 regarding the payment of pension under the new

55 C.A.Nos.6622-6623 of 2022 etc.

pension scheme and the payment of interest on the differential

amount.

39. The State Government issued two Office Memoranda on 08 th

December 2008. The first was regarding the revision of pension/

gratuity/ family pension and commutation with effect from 1st

January 2006 on the basis of recommendations of the U.P. Pay

Committee, 2008. The said order specifically recorded that it will

not apply to local bodies and public enterprises. The second Office

Memorandum dated 08th December 2008 was issued for applying

revision of pension and family pension in respect of the employees

who have retired prior to 1st January 2006. Obviously, the second

Office Memorandum is not relevant as the new pension scheme of

the Board was made applicable to those who retired on or after 1 st

January 2006 as provided in the notification dated 19 th May 2009.

The first Office Memorandum dated 08 th December 2008 which

excluded the officers and employees of the Board was challenged

belatedly for the first time in 2016 in Writ Petition No.126445 of

2016. We may note here that the Board’s notification dated 19 th

May 2009 was issued in the exercise of Regulation making power

56 C.A.Nos.6622-6623 of 2022 etc.

under clause (f) of sub­section (1) of Section 95 of the 1965 Act

which provided that orders issued by the State Government from

time to time with respect to pension/ family pension/ gratuity

shall be applicable to the officers and employees of the Board. No

part of the regulations framed by the Board on 19 th May 2009 was

ever challenged. Therefore, the officers and employees of the Board

who were the beneficiaries under the notification dated 19 th May

2009 were bound by the first Memorandum dated 08 th December

2008 and the orders passed from time to time by the State

Government with regard to pension and family pension. Moreover,

revised pension was granted to the State Government employees

as the recommendations of U.P Pay Committee, 2008 were made

applicable to them. The said recommendations were applied to

the employees of the Board on 14th January 2010. We may note

here that the Allahabad High Court, by the impugned judgment,

has not set aside or modified the Office Memorandum dated 08 th

December 2008.

40. On 16th October 2009, the State Government issued an order

making applicable revised pay structure in terms of the report of

57 C.A.Nos.6622-6623 of 2022 etc.

the 7th U.P. Pay Committee, 2008 to the public enterprises and

corporations subject to the terms and conditions incorporated

therein. The Board, by a letter dated 30 th November 2009,

informed the State Government of its decision to apply the revised

pay structure. It was sought to be argued by some of the

respondents that the order dated 14 th January 2010 relates to

pension. In fact, it only deals with the applicability of the revised

pay structure to the employees and officers of the Board. By the

order dated 14th January 2010, the State Government

communicated its decision to allow the Board to apply the revised

pay structure on a notional basis with effect from 1 st January

2006 in the pay band and grade pay in the revised pay structure

as per the table enclosed to the Government Order dated 16 th

October 2009. The said order recorded that the benefit of pay

structure shall be granted with immediate effect to the officers and

employees of the Board by calculating the benefit on a notional

basis with effect from 1st January 2006. The Office Order was

issued by the Board on 23rd January 2010 for implementation of

the aforesaid order dated 14th January 2010. The meaning of the

58 C.A.Nos.6622-6623 of 2022 etc.

order dated 16th January 2010 was that the actual benefit of the

revised pay structure will be available immediately from that date

by calculating the pay on a notional basis in terms of the revised

pay structure with effect from 1 st January 2006. In other words,

the order dated 14th January 2010 made it clear that the officers

and employees of the Board will not be entitled to revised pay from

1st January 2006 till 14th January 2010 and that they will get the

benefit of revised pay only from 14 th January 2010. But, while

calculating the revised pay with effect from 14th January 2010, the

benefit of the revised pay structure was to be notionally provided

from 1st January 2006. Thus, the pay fixation as of 14 th January

2010 must be made by notionally granting the benefit of the new

pay structure with effect from 1 st January 2006. The

communication dated 15th January 2011 of the State Government

addressed to the Housing Commissioner of the Board records that

the officers and employees of the Board will not be entitled to

arrears of revised pay for the period from 1 st January 2006 to 13th

January 2010. None of these orders of 16 th October 2009, 14th

January 2010, and 15th January 2011 were concerning pension.

59 C.A.Nos.6622-6623 of 2022 etc.

These orders deal only with the grant of a revised pay structure.

But, the computation of pension has to be made on the basis of

the applicable pay structure. Hence, those who retired on or after

1st January 2006 and those who were entitled to benefit of the new

pension scheme under the notification dated 19 th May 2009 will be

benefitted from the revised pay structure to the extent that their

pension will have to be calculated on the basis of revision of pay

structure on notional basis from 1st January 2006.

41. On 05th May 2015, the State Government issued another

order regarding pensionary benefits to the officers and employees

of the Board in terms of which Office Order dated 13 th May 2015

was issued. The gist of the said order dated 05 th May 2015 is as

under :

(i) Such staff of U.P. Avas and Vikas Parishad whose recruitment was done on or before 31 March 2005 and who have not retired till date, will be entitled to pension;

(ii) Such staff of U.P. Avas and Vikas Parishad who had retired and had taken all the benefits under the C.P.F. Scheme after getting retired, will not be entitled to pension;

60 C.A.Nos.6622-6623 of 2022 etc.

(iii) Such staff of U.P. State Avas and Vikas Parishad whose recruitment was done on or after 1 st April 2005 will not be entitled get the pension; and

(iv) In the light of the order of this Court in Preetam Singh’s case, the 9% interest is not payable to any retired staff in C.P.F. Scheme. In future, if the question of paying interest to any staff member arises, then the Board will bear the said expense by itself and no claim can be made from the government.

The directions in the above terms were incorporated in the

consequential order issued by the Board on 13 th May 2015.

Notification dated 19th May 2009 issued by the Board clearly

provides that all the officers and employees who retired on or after

1st January 2006 will be entitled to benefit of the new pension

scheme but those who were employed on or after 1 st April 2005

will be entitled to benefits under the newly defined Contributory

Pension Rules of the State Government. To that extent, clause (i)

of the Government Order dated 5th May 2015 will require

modification. Even clause (ii) will require clarification in terms of

this Judgment. Those officers and employees who have already

taken benefit of the old scheme before 07 th September 2012 by

61 C.A.Nos.6622-6623 of 2022 etc.

giving undertakings will not get the benefit of the new pension

scheme but those who have taken the benefit of the old scheme

after the date of the interim order dated 7 th September 2012 will

be entitled to take benefit of the new pension scheme. Clause (iii)

of the order means that in view of the notification dated 19 th May

2009, those who are appointed on or after 1st April 2005 will not

get the benefit of the new pension scheme under the said

notification. As regards clause (iv), interest will be payable in

terms of the decision of this Court in Preetam Singh’s case1, only

to those employees and officers who had not taken benefit of the

old scheme before the interim order dated 07 th September 2012

was passed by this Court. Interest in terms of the decision of this

Court will be payable on differential amounts, to those who have

taken benefits under the old scheme after 07 th September 2012.

To the above extent, the directions of this Court issued in

Preetam Singh’s case1 will have to be clarified.

ARREARS OF PAY IN TERMS OF REVISED PAY STRUCTURE

62 C.A.Nos.6622-6623 of 2022 etc.

42. Now, the other issue which survives is whether the officers

and employees are entitled to arrears of pay as per the revised pay

structure for the period between 1st January 2006 to 13th January

2010. The impugned judgment proceeds on the footing that the

order of the State Government directing that the officers and

employees of the Board will get the benefit of the new pay

structure notionally from 1st January 2006 and actually from 14th

January 2010 is issued in the exercise of power under Section 2(1)

of 1975 Act and Section 92(2) of the 1965 Act. Therefore, the High

Court held that the State Government could not have issued the

said direction regarding the determination of conditions of service

as the determination of the conditions of service was not a

function of the Board.

43. As far as the applicability of the pay structure to the

employees and officers of the Board is concerned, there is no

material placed on record to show that the Regulation making

power under Section 95 was at all exercised by the Board

regarding applying revised pay structure applicable to the State

Government employees to its own employees. All that the Board

63 C.A.Nos.6622-6623 of 2022 etc.

did was to implement the order of the State Government dated 14 th

January 2010 by granting a revised pay structure to its

employees. The said order is based on the order of the State

Government issued on 16th October 2009 by which a decision was

taken to apply the revised pay structure applicable to the State

Government employees to the employees of public sector

enterprises on the terms and conditions incorporated therein. As

noted earlier, by exercising the Rule making power under clause

(nn) of sub­section 2 of Section 94 of the 1965 Act, the State

Government could have always determined the pay scales of the

officers and employees of the Board. If it is held that the State

Government had no power to issue the orders dated 16 th October

2009 and 14th January 2010, the employees of the Board will not

get the benefit of the revised pay structure made applicable to the

Government employees as the Board has not framed the

Regulations under clause (f) of sub­section (1) of Section 95 of the

1965 Act providing for the grant of revised pay structure to the

employees. Surprisingly, in paragraph 22 of the impugned

judgment, the High Court has held that the orders dated 16 th

64 C.A.Nos.6622-6623 of 2022 etc.

October 2009 and 14th January 2010 would have no applicability

in the matter of laying down the conditions of service of the

employees of the Board. If this finding is upheld, the employees of

the Board will be completely deprived of the benefit of the revised

pay structure as there is no Regulation made by the Board

operating in the field. Hence, the employees of the Board will be

entitled to the revised pay structure in terms of the said orders as

clarified by the further order dated 15 th September 2011.

44. The grant of arrears from 1 st January 2006 till 14th January

2010 will involve huge financial implications for the Board.

Financial constraint is a valid ground for denying arrears as per

the revised pay structure. The decision to provide the benefit of a

higher pay structure to the officers and employees of the Board

was taken by the State Government subject to the condition of not

paying arrears for the period between 1 st January 2006 and 14th

January 2010. Therefore, we cannot approve the direction issued

by the High Court under the impugned judgment to pay arrears of

wages as per the new pay structure for the period from 1 st January

2006 to 14th January 2010.

65 C.A.Nos.6622-6623 of 2022 etc.

45. Hence, our conclusions are as under :

(i) We uphold the decision of this Court in Preetam

Singh’s case1 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 07 th

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 19 th 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

66 C.A.Nos.6622-6623 of 2022 etc.

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 case1.

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 case1;

(iv) Those officers and employees of the Board who have

accepted the benefit under the old scheme before 7 th

September 2012 after giving an undertaking in terms of

the Office Order dated 16th January 2004 shall not be

67 C.A.Nos.6622-6623 of 2022 etc.

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 1 st 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

68 C.A.Nos.6622-6623 of 2022 etc.

have already received the arrears, no recovery

proceedings shall be initiated against them.

46. The impugned judgment and order stands modified in terms

of the above conclusions. The civil appeals are disposed of

accordingly with no order as to costs.

.…....…………………J. [Sanjay Kishan Kaul]

…….…………………J. [Abhay S. Oka]

…….…………………J. [Vikram Nath]

New Delhi;

November 25, 2022.

69