IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No.24 of 2007 State of Uttarakhand & others ………..Appellants Versus Uttarakhand Sangrah Kurk Amin Parishad & another ….Respondents Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for the State/appellants. Mr. Bipin Mohan Pingal & Mr. Deep Chand Joshi, Advocates for respondents. Dated: 14th September, 2010 Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Barin Ghosh, C.J. (Oral) In a writ petition, the Respondent-Union, which is unregistered, contended that its members are ‘Kurk Amins’ and their status is that of Government Servants but such status is being denied to them. They pointed out that after having been appointed on a pay scale carrying Dearness Allowance, they were given option to continue on the basis of commission. Some of the ‘Kurk Amins’ approached the High Court at Allahabad against the orders terminating the services of those ‘Kurk Amins’, who did not agree to work on commission basis, and the said High Court, upon holding that the ‘Kurk Amins’ acquired the status of Government Servants, held their termination without following the procedure laid down under Article 311 of the Constitution, for they refused to work on commission 2 basis, was not proper. This judgment of the High Court was affirmed by the Division Bench of the said High Court later. Against the later judgment, the State of Uttar Pradesh went before the Hon’ble Supreme Court. Subsequently, those ‘Kurk Amins’, who agreed to work on commission basis also filed a writ petition in the High Court at Allahabad seeking declaration of their status, as that of Government employees. The said High Court declared the status as such. Against the said judgment, the matter went to the Hon’ble Supreme Court, when the Hon’ble Supreme Court remanded the matter to the High Court for considering the matter in question as to whether the cases of such ‘Kurk Amins’ would be treated at par with the ‘Kurk Amins’ appointed on salary basis and attract the ratio of the decision in the first case. The High Court answered that question in the affirmative and against that, again, the State went before the Hon’ble Supreme Court. 2. The members of the petitioners were ‘Kurk Amins’ of the State of Uttar Pradesh. After creation of the State of Uttarakhand, the members of the petitioner continued to work in the areas, as they were working, allocated to the State of Uttarakhand. According to the petitioner, the law applicable to the State of Uttar Pradesh was inherited by the State of Uttarakhand at the time of its creation and in terms of such law, ‘Kurk Amins’ were to be treated as Government Servants. It is the contention of the petitioner that its members though were entitled, in terms of law applicable, to be treated as Government Servants, such status was not accorded by the State of Uttarakhand. 3. In such circumstances, the petitioner approached this Court by filing a writ petition and, while so doing, submitted that the appeals, which were then pending before the Hon’ble Supreme Court, as on the date the State of Uttarakhand was created, the same have been decided in favour of ‘Kurk Amins’ in the light of law laid down by the High Court at Allahabad. The petitioner, therefore, contended that its members are entitled to the benefit of law as was prevalent on the date, the State of Uttarakhand came into being, and, in any event, on the basis of the precedent as contained in the decision of the Hon’ble Supreme Court, rendered in the case of State of U.P. and others Vs. Chandra Prakash Pandey and others, reported in AIR (2001) Supreme Court 1298. A learned Single Judge by the judgment and order under appeal has allowed the writ petition and directed the State of Uttarakhand to accord full status of holder of civil post to the members of writ petitioner with all consequential benefits w.e.f. 6th November, 1985. 4. In the present appeal, the State is contending that ‘Kurk Amins’, who were to be appointed under a Scheme prepared by the Registrar of Cooperative Societies, could, under no circumstances, be treated as Government employees, inasmuch as, in terms of the Scheme ‘Kurk Amins’ were to be appointed for a particular Cooperative Society in order to enable the said Cooperative Society to recover its debts. It was 4 contended that when salaries were payable to ‘Kurk Amins’ they were to be paid by the Cooperative Societies for whom they were to be appointed and when they were to be paid commission, they were to be paid the same from the realization made on behalf of the Cooperative Societies and, accordingly, at no point of time, any money belonging to the State Exchequer has been spent for payment of their salaries or commission. It was submitted that, in such circumstances, although ‘Kurk Amins’ were appointed by the District Collector/ Magistrate but having regard to the purpose and nature of appointment of ‘Kurk Amins’, they cannot be treated as part of the Government establishment, either temporary or permanent. It was submitted that in view of the judgment rendered by the Constitution Bench in the case of Secretary, State of Karnataka & others Vs. Uma Devi and others reported in 2006 (4) SCC 1, the judgment rendered by Hon’ble Supreme Court in the case of State of U.P. & others Vs. Chandra Prakash Pandey and others reported in (2001) 4 SCC-78 cannot be treated as a precedent and, at the same time, the judgment rendered by the Division Bench of the High Court at Allahabad, prior to the creation of the State of Uttarakhand, cannot be treated as good law guiding the State of Uttarakhand. It was submitted, that at no point of time, the State of Uttar Pradesh created any post of ‘Cooperative Kurk Amins’ and, accordingly, no ‘Cooperative Kurk Amins’ was allocated to the State of Uttarakhand. It was also submitted that, in the event, the judgment under appeal is allowed to remain, that will compel the Government of Uttarakhand to create posts of ‘Cooperative Kurk Amins’ for the first time, for the purpose of accommodating the members of the petitioner in those posts. 5. The contention of the State of Uttarakhand, as above, may or may not be correct. We are, however, not in a position to go into that aspect of the matter, in view of the law laid down by the High Court at Allahabad, which law became the law enforceable, in so far as, the State of Uttarakhand is concern, upon its creation. It was well within the competence of the State of Uttarakhand to make such law in order to avoid the law so made by the High Court at Allahabad, which became applicable to the State of Uttarakhand, but the fact remains that the State of Uttarakhand did not make any such law. The fact that the Hon’ble Supreme Court has declared the status of ‘Cooperative Kurk Amins’ as that of Government Servant, in confirmation of the law declared by the High Court at Allahabad, is not in dispute. But for the creation of the State of Uttarakhand, the members of the petitioner, who were working in the State of Uttar Pradesh before bifurcation of the said State and continued to work in the bifurcated State of Uttarakhand at the same place they were working before bifurcation, would have had the advantage of the said judgment of the Hon’ble Supreme Court, rendered in the case of State of U.P. & others Vs. Chandra Prakash Pandey and others. Only because the State was bifurcated, to which they had no role to play, they would be deprived of such advantage 6 is not comprehendible to us. We, under those circumstances, cannot deprive the members of the petitioner of the benefit or advantage of the said judgment, nor we can avoid to follow the ratio of the said judgment. 6. It is true that in Uma Devi (Supra), the Hon’ble Supreme Court has discussed when and how a Government Servant is appointed and how a person can acquire the status of a Government Servant. However, that discussion was made in the backdrop of appointments given in the Government contrary to the Rules and Regulations framed under the proviso to Article 309 of the Constitution of India. As against that in State of U.P. & others Vs. Chandra Prakash Pandey and others (Supra), the Hon’ble Supreme Court agreed with the recognition of the status of the ‘Cooperative Kurk Amins’ as that of Government Servants. We do not think that on the strength of the ratio of the judgment rendered in Uma Devi (Supra), we can avoid to follow what has been held in the State of U.P. & others Vs. Chandra Prakash Pandey & others, in relation to persons, who are sailing in the same boat. 7. We, accordingly, conclude the matter and, as such, refuse to interfere with the judgment and order under appeal, except to the effect that the consequential benefits which the members of the petitioner can have pursuant to the said judgment and order, will be from 9th November, 2000 and not w.e.f. 16th November, 1985, as had been directed by the judgment and order under appeal. The appeal is, accordingly, disposed of. (V.K. Bist, J.) (Barin Ghosh, C.J.) 14.09.2010 14.09.2010 Arpan