Writ Petition No 1555 of 1979 etc
Under Article 32 of the Constitution of India
144 DN Dwivedi and Sarwa Mitter for the Petitioners
Dr LM Singhvi BD Sharma Shri Narain Sandeep Narain Shrid Rizvi and DK Singh for the Respondents
The Judgment of the Court was delivered by RM SAHAI J
Validity of Rajasthan Agricultural Pro duce Markets Act 1961 for brevity the Act levying market fee on sale and purchase of agricultural produce in market yard or sub marketyard was challenged by dealers for lack of legislative competence violation of Articles 14 19 30 1 and 304 of Constitution absence of any quid pro quo in the fee paid and service rendered illegal and arbi trary inclusion of manufactured articles such as Khandsari Shakkar Gur and Sugar as agricultural produce in the sched ule etc
Acts of other States for instance Punjab and Haryana and UP were also assailed for similar infirmities
Whether these petitions which appear to be identical are reproduc tion of any of those petitions which were pending in this Court from before is not relevant but various group of petitions of Punjab and Haryana dealers challenging consti tutionality and legality of Act and its provisions including Gut Khandsari and Shakkar as agricultural produce in the schedule of Punjab Act have been dismissed by different benches presumably because of decisions in Kewal Krishan Puri vs State of Punjab   Ramesh Chandra vs State of UP  Rathi Khandsari Udyog vs State of UP and Sreenivisa General Traders vs State of Andhra Pradesh AIR 1983 SC 1264
Despite these decisions spelling out basic principles for determining validity of marketing legislations dealing with agricultural produce the petitioners were not willing to take it lying down probably because none of these deci sions dealt with sugar
It was urged that inclusion of sugar in the Schedule of the Act was arbitrary primarily because it being a declared commodity of public importance under Entry 52 of List I of Schedule VII the State legislature was precluded from legislating on it
Its inclusion in the Schedule was also assailed as it being a Mill or Factory produce it could not be deemed to be agricultural produce which is basically confined to produce of or from soil
Sugar is one of the items which was included in the Schedule to the Act statutorily right from its inception
Such inclusion is found in 145 Maharashtra Gujarat West Bengal Bihar etc
Whether it was subsequently deleted or re included or re grouped or it was added later was immaterial as Section 40 of the Act empow ered State Government to amend or include any item in the Schedule of agricultural produce
Existence of such delegat ed power is usual feature of the statutes
No illegality or infirmity could be pointed out in it
Any challenge there fore rounded on excessive delegation of legislative power was misconceived
Inclusion of sugar in the Schedule was urged to be arbitrary as it was not produced out of soil the basic ingredient of agricultural produce
Fallacy of the submis sion is apparent as it was in complete disregard of defini tion of the word agricultural produce in the Act which includes all produce whether agricultural horticultural animal husbandry or otherwise as specified in the Schedule
The legislative power to add or include and define a word even artificially apart the definition which is not ex haustive but inclusive neither excludes any item produced in mill or factories nor it confines its width to produce from soil
If that be the construction then all items of animal husbandry shall stand excluded
It further overlooks expanse of the expression or otherwise as specified in the Sched ule
 Nor switch over from indigenous method of producing anything to scientific or mechanical method changes its character
Khandsari sugar which is produced by open pan process and is not different from sugar produced by vacuum pan process except in composition filterability and conduc tivity as held in Rathi Khandsari Udyog supra was held to be agricultural produce in some decisions
No distinction was made on method of production namely by modern plant and machinery
To say therefore that sugar being produced in mill or factories could not be deemed to be agricultural produce is both against the statutory language and judicial interpretation of similar provisions of the Act in statutes of other States
Rice or dal produced in mills have been held to be agricultural produce in Ramesh Chandra vs
UP State and State of UP vs Ganga Das Mill Even in Halsbury Law of England  Vol
I the word agricultural produce for purpose of agricultural marketing schemes is understood as including any product of agriculture or horticulture and any article of food or drink wholly or partly manufactured or derived from any such product and fleeces including all kinds of wool and the skins of animals 
In the same volume products covered by the provisions of EEC Treaty as to agriculture classified according to the Brussels Nomenclature of 1965 are men tioned in paragraph 1845
Sugar is one of them
146 Another legalistic challenge regarding inhibition of State to legislate on sugar or of repeated argument of occupied field was more attractive than of any substance
Reliance on Article 246 of the Constitution was academic only
As far back as 1956 Constitution Bench of this Court in Choudhary Tika Ram and others vs State of UP  examined the matter in detail and held sugar legis lations to be within the scope of Entry 33 of concurrent list
It was observed that all Acts and the notifications issued thereunder by the Centre in regard to sugar and sugarcane were enacted in exercise of concurrent jurisdic tion 
Effect of it was described thus The Provincial Legislature as well as the Central Legislature would be competent to enact such pieces of legislation and no ques tion of legislative competence would arise 
Any further discussion on clash between Entry 52 of List I of VII Sched ule with Entry 28 of List II in the circumstances is unnec essary
As regards the submission of occupied field suffice it to say that there is no repugnancy m the Central and State legislation
At least none was made out
Even if there would have been any the Act having received assent of the President it is fully protected by Article 2542
For these reasons these petitions fail and are dismissed with costs
NPV Petitions dismissed


Summary:
The petitioners employed in temporary capacity with the Oil and Natural Gas Commission when it was a Department of the Government of India were subsequently absorbed in the said Commission when it was established as a statutory body under the 
The was made applicable to the Commission
The petitioners opted for Contributory Provident Fund and availed the bene fit
The petitioners filed a writ petition in this Court claiming the benefit of pension in addition to the Provident Fund contending that i under the relevant Rules governing their service they were entitled to pension on their being made permanent and that the right to pension 157 which was part of their service condition was protected by Section 131 of the read with Regulation 32 of the Oil and Natural Gas Commission Terms and Conditions of Appointment and Service Regula tions 1975 and ii In spite of the introduction of the Contributory Provident Fund Scheme their right to pension was preserved by Section 12 of the Provident Fund Act
Dismissing the writ petition this Court HELD 1
The scheme of Contributory Provident Fund by way of retiral benefit envisaged by the Provident Fund Act is in the nature of a substitute for old age pension because it was felt that in the prevailing conditions in India the institution of a pension scheme could not be visualised in the near future
It was not the intention of Parliament that Provident Fund benefit envisaged by the said Act would be in addition to pensionary benefits
165G H 166A 2
Section 12 of the Provident Fund Act seeks to protect the wages of an employee to whom the scheme framed under the said act applies as well as the total quantum of certain specified benefits to which he is entitled under the terms of his employment
It prohibits an employer from reducing whether directly or indirectly the wages of an employee to whom the Scheme applies or the total quantum of benefits in the nature of old age pension gratuity Provident Fund or life insurance to which the employee is entitled under the terms of his employment express or implied
The said section proceeds on the basis that if an employee is entitled to any benefit in the nature of old age pension under the terms of his employment the said benefit would not be denied to him on the application of the Scheme
166A C 21 In the instant case on the date of application of the Provident Fund Scheme to the Oil and Natural Gas Commis sion
the benefit of pension was not a part of the terms of employment of the petitioners and they were not entitled to receive pension on that date
Consequently the petitioners cannot invoke the provisions of Section 12 of the Provident Fund Act
166D Som Prakash Rekhi vs Union of India  Anr   held inapplicable
The petitioners were employed on temporary basis at the time when the Commission was established as a statutory body under the and on that date they were not 158 entitled to claim pension because under the relevant Rules pension was not payable to a person employed on temporary basis
The petitioners therefore cannot claim that on the date of their becoming the employees of the Commission established under the Oil and Natural as Commission Act in 1959 they had a right to pension which has been protected under sub section 1 of Section 13 and clause 12 of Regu lation 3 of the Regulations
164A B 31 Under the relevant service rules applicable to petitioners they could either claim pension or the benefit of the Contributory Provident Fund and they could not avail both the benefits
Since the petitioners are entitled to the benefit of the Contributory Provident Fund under the Provi dent Fund Act and the Provident Fund Scheme and have availed the said benefit for the past 28 years they should be taken to have opted for said benefit and they cannot invoke the service rules with regard to pension and claim the right to receive pension as part of their conditions of service
I 164C D 32 The persons who were employed in temporary capacity with the Oil and Natural Gas Commission when it was being run as a Department of the Government of India prior to the enactment of the and who were subsequently absorbed in the Commission as established under the said Act are not entitled to pension in addition to the Provident Fund benefit to which they are entitled under the provisions of the Provident Fund Act
167B C