Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 - resolution dated 21.2.1995 was passed, proposing to replace the existing Contributory Provident Fund Scheme, to the Pension/Family Pension and Gratuity Scheme. - Govt. Objections - Apex court held that A perusal of clause (f) of Section 95(1), with clause (I) of Section 95(1) would reveal, that the Vikas Parishad is vested with the right to make regulations, so as to extend to its employees a scheme in the nature of Pension/Family Pension and Gratuity Scheme i.e., a scheme similar to the
one framed by the Vikas Parishad on 19.5.2009. For the reasons recorded hereinabove, we find no merit in this appeal, and the same is accordingly dismissed. While determining the pensionery 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 at the rate of 9% per annum. 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 concerned employees.=
The Uttar Pradesh Avas Evam Vikas Parishad (hereinafter referred to
as the 'Vikas Parishad') is a corporate body. It came into existence,
consequent upon the promulgation of the Uttar Pradesh Avas Evam Vikas
Parishad Adhiniyam, 1965 (hereinafter referred to as the '1965 Act'). The
employees of the Vikas Parishad were members of a Contributory Provident
Fund Scheme. The Vikas Parishad desired to grant its employees better
retiral benefits. A proposal was made, to extend pensionery benefits to
the employees of the Vikas Parishad, in place of the existing Contributory
Provident Fund Scheme. In furtherance of the aforesaid objective, a
resolution dated 21.2.1995 was passed, proposing to replace the existing
Contributory Provident Fund Scheme, to the Pension/Family Pension and
Gratuity Scheme. - Govt. Objections =
“Section 95. Power to make regulations.-
(1)The Board may, by notification
in the Gazette, make regulation providing for-
(a) the time and place of, and the manner of convening, the meeting of
the Board and its committees and Avas Samitis and their postponement and
adjournment;
(b) the procedure and the conduct of business at meetings of the Board
and of its committees and Avas Samitis;
(c) the appointment, constitution and procedure of committees;
(d) the delegation of powers by the Housing Commissioner and officers of
the Board;
(e) the duties of officers and servants of the Board;
(f) the conditions of services of officers and servants of the Board;
(g) the preparation of plans and estimates for works;
(h) the preparation of budgets and estimates;
(i) the authority on which moneys may be paid from the Board's fund;
(j) the manner of publication of public notices;
(k) the stamping of facsimile of signatures of the Housing Commissioner
and officers of the Board on notices, bills and other documents;
(l) the fees payable for copies of documents, estimates and plans issued
by the Board;
(m) the management, use and allotment of buildings constructed under any
housing or improvement scheme;
(n) any other matter which is to be or may be provided for by regulations
under this Act or the rules.
(2) If any regulations is repugnant to any rule then the rule whether
made before or after the regulations shall prevail and the regulation shall
to the extent of the repugnancy be void.”
A perusal of clause (f) of Section 95(1), with clause (I) of Section 95(1)
would reveal, that the Vikas Parishad is vested with the right to make
regulations, so as to extend to its employees a scheme in the nature of
Pension/Family Pension and Gratuity Scheme i.e., a scheme similar to the
one framed by the Vikas Parishad on 19.5.2009.
15. For the reasons recorded hereinabove, we find no merit in this
appeal, and the same is accordingly dismissed.
16. 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 16.1.2009. This Court having entertained the petition filed
by the appellant, passed interim directions on 7.8.2012, 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
19.5.2009. As a result, employees governed by the notification dated
19.5.2009, were paid their retiral dues under the Contributory Provident
Fund Scheme. Since we have now affirmed the impugned judgment of the High
Court, dated 16.1.2009, it is apparent that all the eligible employees of
the Vikas Parishad will be governed by the notification dated 19.5.2009.
They will therefore be entitled to pensionery 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
behest of the State of Uttar Pradesh. In the above view of the matter, we
direct the Vikas Parishad to release the pensionery benefits to the retired
employees governed by the notification dated 19.5.2009, within three months
from today. While determining the pensionery 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 at the rate of 9% per annum. 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 concerned
employees.
2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=42000
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6307 OF 2010
State of Uttar Pradesh ..Appellant
versus
Preetam Singh and others ..Respondents
J U D G M E N T
J.S.KHEHAR, J.
1. The Uttar Pradesh Avas Evam Vikas Parishad (hereinafter referred to
as the 'Vikas Parishad') is a corporate body. It came into existence,
consequent upon the promulgation of the Uttar Pradesh Avas Evam Vikas
Parishad Adhiniyam, 1965 (hereinafter referred to as the '1965 Act'). The
employees of the Vikas Parishad were members of a Contributory Provident
Fund Scheme. The Vikas Parishad desired to grant its employees better
retiral benefits. A proposal was made, to extend pensionery benefits to
the employees of the Vikas Parishad, in place of the existing Contributory
Provident Fund Scheme. In furtherance of the aforesaid objective, a
resolution dated 21.2.1995 was passed, proposing to replace the existing
Contributory Provident Fund Scheme, to the Pension/Family Pension and
Gratuity Scheme. Before implementation of the resolution dated 21.2.1995,
the Vikas Parishad considered it expedient to consult the State Government.
In response to the afore-mentioned consultation, the State Government
through a communication dated 16.5.1996 approved the afore-stated
substitution conditionally. The conditions depicted in the aforesaid
approval dated 16.5.1996, are being extracted hereunder:
“Kindly refer to your letter no. 213/P-1 dated 24.4.1995 on the aforesaid
subject. In this regard, I have been directed to say that State Government
has no objection to the proposal of implementing Pension/Family Pension &
Gratuity Scheme in place of C.P.F. Scheme in Uttar Pradesh Avas Evam Vikas
Parishad. But subject to condition that no financial assistance will be
given by the State Government for implementation of this Scheme and this
Scheme will be run by the Board itself from the revolving funds created by
it. “
(emphasis is ours)
2. Consequent upon the receipt of the aforesaid approval from the State
Government, the Vikas Parishad circulated a letter dated 9.7.1996 requiring
its employees to submit their options, as to whether they were desirous of
shifting to the Pension/Family Pension and Gratuity Scheme, in place of the
existing Contribution Provident Fund Scheme.
3. At the instant juncture, a very vital letter came to be issued by the
State Government on 30.09.1997. Relevant extract of the aforesaid letter
is being reproduced hereunder:
“I have been directed to say that in order to implement the subject scheme,
it is not necessary to initiate any proceedings required under Clause (c)
of the Employees Provident Fund & Miscellaneous Provisions Act, 1952 of the
Central Government. Because Avas Evam Vikas Parishad is governed by the
provisions of Uttar Pradesh Avas Evam Vikas Parishad Act, 1965 and specific
provisions to this effect have been laid down in Section 95 of the said
Act, 1965 according to which necessary proceedings are to be initiated for
obtaining option from the employees for accepting and/or not accepting the
proposed Pension Scheme.”
(emphasis is ours)
A perusal of the aforesaid letter reveals, that even though the State
Government had granted conditional approval to the Pension/Family Pension
and Gratuity Scheme, through its communication dated 16.5.1996, the State
government expressed the opinion, that the Vikas Parishad did not need the
approval of the State Government for the implementation of the
Pension/Family Pension and Gratuity Scheme. Insofar as the instant aspect
of the matter is concerned, the State Government in its letter dated
30.09.1997 clearly informed the Vikas Parishad, that it had the power to
deal with the above issue of its own, under Section 95 of the 1965 Act.
4. Based on the conditional approval granted by the State Government
through its communication dated 16.5.1996, and also the clarificatory
letter issued by the State Government on 30.09.1997, the Vikas Parishad
passed a resolution on 5.11.1997 approving the Pension/Family Pension and
Gratuity Scheme. In granting the aforesaid approval, the Vikas Parishad
followed the pensionery scheme applicable to civil servants of the State of
Uttar Pradesh.
5. Before the resolution dated 5.11.1997 could be implemented, the
Director General of Bureau of Public Enterprises addressed a communication
dated 19.11.1997 to the State Government, informing it, that the Vikas
Parishad had not sought its approval before the implementation of the
Pension/Family Pension and Gratuity Scheme. In sum and substance, the
Director General of Bureau of Public Enterprises informed the State
Government, that the action taken by the Vikas Parishad in implementing the
above scheme without its approval, was not in consonance with law. On the
receipt of the letter from the Director General of Bureau of Public
Enterprises, the State Government by its order dated 26.11.1997 stayed the
implementation of the Pension/Family Pension and Gratuity Scheme. Whilst
taking the above action, the State Government constituted a Sub-Committee
to examine the varicity and viability of the conversion of the
Contributory Provident Fund Scheme to the Pension/Family Pension and
Gratuity Scheme, not only with reference to employees of the Vikas
Parishad, but with reference to employees of other Statutory Corporations,
Development Authorities and Nigams in the State of Uttar Pradesh. The
aforesaid Sub-Committee, under the Chairmanship of the Chief Secretary of
the State, held a meeting on 3.10.1998. In the above meeting, Sub-
Committee arrived at the conclusion, that there was no justification for
the implementation of the Pension Scheme in any Statutory Corporations,
Development Authorities or Nigams in the State of Uttar Pradesh. It was
also the view of the Sub-Committee that the existing Contributory Provident
Fund Scheme, should be continued for all the employees, for the time
being.
6. Even though the above recommendation was made by the Sub-Committee,
yet the Sub-Committee on 2.2.1999 expressed the view, that the aforesaid
general determination recorded in its meeting dated 3.10.1998, should not
be made applicable to the Vikas Parishad. Taking into consideration the
excellent financial condition of the Vikas Parishad, the Sub-Committee
observed that the Vikas Parishad should be permitted to take steps to
introduce the Pension/Family Pension and Gratuity Scheme. It was however
clearly indicated, that the Pension/Family Pension and Gratuity Scheme if
introduced, for employees of the Vikas Parishad, the same would not create
any financial liability on the State Government.
7. Based on the recommendations of the sub-Committee (in its meeting
dated 2.2.1999), the State Government passed an order dated 14.9.1999,
withdrawing its ban/restriction on the implementation of the Pension/Family
Pension and Gratuity Scheme. Relevant extract of the letter dated
14.9.1999 is being reproduced below:
“In this regard, I have been directed to say that government after due
consideration in the matter has decided to withdraw its bar/restriction
imposed on the implementation of the subject Pension Scheme for the
employees of the Board, subject to following conditions -
(1) Implementation of the Pension Scheme in the Board will be completely
different from the pension being given to the employees of the State
Government and this Scheme will be developed in the form of a
distinct/separate trust based on C.P.F. and such a trust will be run and
operated by a Third Party Pension Fund Manager. This Pension Scheme shall
not have any connection/relation with the Pension Scheme of the government
servants in any manner whatsoever. This pension scheme will be completely
autonomous and will depend on the financial condition of the Pension funds;
(2) Money which will be deposited on this head/count, will not be spend
for any other count/head meaning thereby that money so deposited on this
count will be irreversible for any other purposes and it will be operated
by the Trust;
(3) Pension Scheme will be maintained financially on the basis of
contributions made by the Board towards C.P.F. and no money, apart from
above, will be paid either by the Board or by the State Government. Please
note that if this Scheme closes down due to any reason or due to non-
availability of pension funds, then in that eventuality neither the
Government nor the Board will be responsible for such a closure;
(4) Trust will be fully responsible for all the financial and economical
aspects of the funds of this Scheme, based upon arrangements made with the
Third Party Pension Fund Manager and Government/Board will not be
responsible for any loss whatsoever;
(5) Representatives nominated by the Secretary, Housing and Secretary,
Finance, will be amongst members of the Trust which will be created for the
implementation of the Pension Scheme of the Board;
(6) Commissioner, Housing and Financial Controller of the Board will be
personally responsible for ensuring strict compliance of the aforesaid
conditions; and
(7) These orders are being issued on the basis of consent accorded by the
Finance Department vide its D.O. No.140/99-C-Ten (1) dated 9.8.199.”
(emphasis is ours)
8. The aforesaid position was sought to be endorsed by the State
Government on 7.5.2003, wherein the State Government reiterated the
position, that no financial assistance will be provided by the State
Government to the Vikas Parishad for implementation of the Pension/Family
Pension and Gratuity Scheme.
9. All of a sudden, the State Government issued yet another letter dated
13.9.2005 staying the earlier Government order dated 7.5.2003 (relevant
extracts wherefrom have been reproduced hereinabove). Thereupon, through a
further communication dated 12.7.2007, the State government withdrew its
approval altogether. Through the above letter dated 12.7.2007, the State
Government clearly informed the Vikas Parishad, that it could not implement
the Pension/Family Pension and Gratuity Scheme. It further informed the
Vikas Parishad, that employees of Public Enterprises, Statutory
Corporations, Development Authorities and Nigams, who are covered by the
Employees Provident Fund and Miscellaneous Pensions Act, 1952 of the
Central Government, and those to whom different Contributory Provident Fund
Schemes were already applicable, were liable to be governed by the said
provisions and schemes.
10. The denial of permission by the State Government, as also, the
incorporations of the conditions mentioned above, was sought to be assailed
by the employees of the Vikas Parishad, before the High Court of Judicature
at Allahabad (Lucknow Bench)(hereinafter referred to as the 'High Court'),
by filing Writ Petition No. 582(SB) of 2000. The aforesaid writ petition
was allowed by the impugned judgment dated 16.1.2009. The orders issued by
the State Government dated 13.9.2005 and 12.7.2007 were expressly quashed.
A writ in the nature of mandamus was issued by the High Court to the Vikas
Parishad, requiring it to implement the Pension/Family Pension and Gratuity
Scheme. In compliance with the aforesaid direction, the Vikas Parishad
implemented the Pension/Family Pension and Gratuity Scheme, through a
notification dated 19.5.2009. Relevant extract of the aforesaid
notification is being reproduced hereunder:
“Now therefore, the U.P. Avas Evam Vikas Parishad, in exercise of the
power under clause (f), (i) & (n) of sub-section (1) of Section 95 of U.P.
Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act 1 of 1996) 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 officers and employees of the U.P. Avas Evam Vikas
Parishad :
1. Civil Service Regulations as applicable As amended
in U.P.
2. Uttar Pradesh Liberalized Pension -do-
Rules, 1961.
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 asr elated to Pension/Family
Pension/Gratuity -do-
6. Newly defined Contribtory rules according -do-
to notification no. Sa-3-379/das-2005-301(9)/2003
dated March 28, 2005 applicable to officers and
employees of State Govt., who have joined
services on April 01, 2005 or onwards
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.”
It would be pertinent to mention, that the aforesaid notification was
expressly extended to such employees of the Vikas Parishad, who were in
service on 1.1.1996. The Pension/Family Pension and Gratuity Scheme in
terms of the aforesaid notification, would be applicable only till the
introduction of the newly defined Contributory Fund Rules framed by the
State Government, as were applicable to employees of the Vikas Parishad who
had entered its service w.e.f. 1.4.2005.
11. In raising a challenge to the impugned judgment rendered by the High
Court on 16.1.2009, it was the vehement contention of the learned counsel
for the State of Uttar Pradesh, that the scheme could not have been
formulated, and given effect to in the absence of an express approval by
the State Government. Insofar as the instant contention is concerned,
learned counsel for the appellant placed reliance on the Uttar Pradesh
State Control Over Public Corporations Act, 1975. Our pointed attention
was invited to Section 2(1) thereof, which is being extracted hereunder:
“2(1) 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 emaneded
by the Uttar Pradesh University (Re-enactment and Amendemnt) 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 is ours)
Based on the aforesaid provisions, it was the submission of the learned
counsel for the appellant, that the State of Uttar Pradesh, through its
communications dated 13.9.2005 and 12.7.2007, must be deemed to have issued
directions to the Vikas Parishad, restraining it from implementing the
Pension/Family Pension and Gratuity Scheme. The aforesaid directions,
according to the learned counsel, were binding on the Vikas Parishad.
12. We have given our thoughtful consideration to the first contention
advanced at the hands of the learned counsel for the appellant. There can
be no doubt that it is open to the State Government to issue directions of
questions of policy to all Public Corporations in the State of Uttar
Pradesh, in furtherance of the mandate contained in Section 2(1) of the
1975 Act. It would however be pertinent to mention that the above
directions could be issued only in respect of questions of policy having a
nexus to the “discharge of its functions”. Insofar as the Vikas Parishad
is concerned, we are of the view that the functions of the Vikas parishad
are relatable only to the functions stipulated in Section 15 of the 1965
Act. Section 15 afore-mentioned is being reproduced hereunder:
“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 co-ordinate 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;
(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 co-operative 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 fulfill 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,
the Board may undertake, where it deems necessary, any of the following
functions, namely -
(a) to promote research for the purpose of expendinting 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 co-ordinate, 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, 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.”
In our view, the State of Uttar Pradesh, had the right to issue directions
only in respect of the functions assigned to the Vikas Parishad under
Section 15 of the 1965 Act. The conditions of service of employees, in our
considered view, do not constitute the functions of the Vikas Parishad, and
as such, we are satisfied that the directions contemplated under Section
2(1) of the 1975 Act, do not extend to the directions issued by the State
of Uttar Pradesh in the impugned orders dated 13.9.2005 and 12.7.2007. We
therefore find no merit in the first contention advanced by the learned
counsel for the appellant.
13. Insofar as the second contention is concerned, it was the vehement
contention of the learned counsel for the appellant, that the State of
Uttar Pradesh is to shoulder the financial liabilities of the Vikas
Parishad, in the event of its dissolution. Insofar as the instant aspect
of the matter is concerned, learned counsel for the appellant placed
reliance on Section 93 of the 1965 Act. The said provision is being
extracted hereunder:
93. Dissolution of the Board.-(1) If the State Government is of opinion
that the Boards has failed to carry out its functions under this Act or
that for any other reason, it is not necessary to continue the Board, it
may, by notification in the Gazette, dissolve the Board from such date as
may be specified in the notification.
(1) Upon the publication of a notification under sub-section (1)
dissolving the Board-
(a) the Adhyaksh, the Housing Commissioner and all members of the Board
shall, as from the date of dissolution, vacate their offices;
(b) all the powers and functions which may, by or under this Act, be
exercised and performed by or on behalf of the Board or the Housing
Commissioner shall, as from the date of dissolution, be exercised and
performed by, and all subsisting contracts, agreements and other
instruments to which the Board or the Housing Commissioner is a party or
which are in favour of the Board or the Housing Commissioner may be
enforced or acted upon, and all suits, appeals and other legal proceedings
pending by or against the Board or the Housing Commissioner may be
contined, prosecuted or enforced, by or against the State Government or
such authority or person as it may appoint in this behalf;
(c) the fund of and other properties vested in the Board shall vest in
the State Government; and
(d) all liabilities, legally subsisting and enforceable against the
Board, shall be enforceable against the State Government to the extent of
the fund and properties of the Board vested in it.
(3) Nothing in this section shall affect the liability of the State
Government in respect of debentures guaranteed by it under sub-section (2)
of Section 59.
(4) Notwithstanding anything contained in the foregoing provisions of
this Action, the State Government may at any time again establish a Board
under Section 3 and appoint a Housing Commissioner under Section 7, and
thereupon-
(a) the powers and function as well as the rights and liabilities in
relation to contracts, agreements and other instruments, and suits, appeals
and other legal proceedings referred to in clause (b) of sub-section (2)
shall re-vest in the Board or the Housing Commissioner, as the case may be
;
(b) the fund and other properties referred to in clause (c) of sub-
section (2) remaining with the State Government after meeting any
liabilities referred to in clause (d) thereof shall re-vest in the Board.”
Having perused Section 93 of the 1965 Act, we are satisfied, that under
clause (d) of Section 93(1), the financial liability transferable to the
State Government in the event of dissolution of the Board, is limited of
the fund and properties of the Board vested in it. In other words, the
State of Uttar Pradesh in case of dissolution of the Board, would only bear
the responsibility of discharging the liabilities, to the extent of the
properties of the Board which stand transferred to it. Thus viewed, we are
of the opinion that no financial liability would stand transferred to the
State Government, even in the event of the dissolution of the Vikas
Parishad. Accordingly, we find no merit even in the second contention
advanced at the hands of the learned counsel for the appellant.
14. Despite the objections raised by the learned counsel for the
appellant, we shall also venture to determine, whether the Vikas Parishad
was competent to frame regulations, whereby it could extend the
Pension/Family Pension and Gratuity Scheme to its employees. In this
behalf, it is relevant to examine Section 95 of the 1965 Act. The
aforesaid provision is being produced hereunder:
“Section 95. Power to make regulations.-(1)The Board may, by notification
in the Gazette, make regulation providing for-
(a) the time and place of, and the manner of convening, the meeting of
the Board and its committees and Avas Samitis and their postponement and
adjournment;
(b) the procedure and the conduct of business at meetings of the Board
and of its committees and Avas Samitis;
(c) the appointment, constitution and procedure of committees;
(d) the delegation of powers by the Housing Commissioner and officers of
the Board;
(e) the duties of officers and servants of the Board;
(f) the conditions of services of officers and servants of the Board;
(g) the preparation of plans and estimates for works;
(h) the preparation of budgets and estimates;
(i) the authority on which moneys may be paid from the Board's fund;
(j) the manner of publication of public notices;
(k) the stamping of facsimile of signatures of the Housing Commissioner
and officers of the Board on notices, bills and other documents;
(l) the fees payable for copies of documents, estimates and plans issued
by the Board;
(m) the management, use and allotment of buildings constructed under any
housing or improvement scheme;
(n) any other matter which is to be or may be provided for by regulations
under this Act or the rules.
(2) If any regulations is repugnant to any rule then the rule whether
made before or after the regulations shall prevail and the regulation shall
to the extent of the repugnancy be void.”
A perusal of clause (f) of Section 95(1), with clause (I) of Section 95(1)
would reveal, that the Vikas Parishad is vested with the right to make
regulations, so as to extend to its employees a scheme in the nature of
Pension/Family Pension and Gratuity Scheme i.e., a scheme similar to the
one framed by the Vikas Parishad on 19.5.2009.
15. For the reasons recorded hereinabove, we find no merit in this
appeal, and the same is accordingly dismissed.
16. 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 16.1.2009. This Court having entertained the petition filed
by the appellant, passed interim directions on 7.8.2012, 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
19.5.2009. As a result, employees governed by the notification dated
19.5.2009, were paid their retiral dues under the Contributory Provident
Fund Scheme. Since we have now affirmed the impugned judgment of the High
Court, dated 16.1.2009, it is apparent that all the eligible employees of
the Vikas Parishad will be governed by the notification dated 19.5.2009.
They will therefore be entitled to pensionery 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
behest of the State of Uttar Pradesh. In the above view of the matter, we
direct the Vikas Parishad to release the pensionery benefits to the retired
employees governed by the notification dated 19.5.2009, within three months
from today. While determining the pensionery 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 at the rate of 9% per annum. 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 concerned
employees.
….................….....................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI;
…..................…....................J.
SEPTEMBER 23, 2014. [ARUN MISHRA]
ITEM NO.1 COURT NO.7 SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 6307/2010
GOVT. OF U.P. Appellant(s)
VERSUS
PREETAM SINGH & ORS. Respondent(s)
(with appln. (s) for exemption from filing O.T. and permission to file
additional documents and office report)
Date : 23/09/2014 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE ARUN MISHRA
For Appellant(s) Mr. P.N. Misra, Sr. Adv.
Mr. Abhisth Kumar,Adv.
Mr. Som Raj Choudhury, Adv.
For Respondent(s) Mr. Rakesh Dwivedi, Sr. Adv.
Mr. Vishwajit Singh,Adv.
Mr. Pankaj Singh, Adv.
Mr. Abhindra Maheshwari, Adv.
Mr. Jaideep Gupta, Sr. Adv.
Mr. Ajit Sharma, Adv.
Mr. Upander Mishra, Adv.
M/s. Temple Law Firm,Adv.(Not present)
UPON hearing the counsel the Court made the following
O R D E R
The appeal is dismissed in terms of the Reportable signed
judgment, which is placed on the file.
(Parveen Kr. Chawla) (Phoolan Wati Arora)
Court Master Assistant Registrar
one framed by the Vikas Parishad on 19.5.2009. For the reasons recorded hereinabove, we find no merit in this appeal, and the same is accordingly dismissed. While determining the pensionery 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 at the rate of 9% per annum. 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 concerned employees.=
The Uttar Pradesh Avas Evam Vikas Parishad (hereinafter referred to
as the 'Vikas Parishad') is a corporate body. It came into existence,
consequent upon the promulgation of the Uttar Pradesh Avas Evam Vikas
Parishad Adhiniyam, 1965 (hereinafter referred to as the '1965 Act'). The
employees of the Vikas Parishad were members of a Contributory Provident
Fund Scheme. The Vikas Parishad desired to grant its employees better
retiral benefits. A proposal was made, to extend pensionery benefits to
the employees of the Vikas Parishad, in place of the existing Contributory
Provident Fund Scheme. In furtherance of the aforesaid objective, a
resolution dated 21.2.1995 was passed, proposing to replace the existing
Contributory Provident Fund Scheme, to the Pension/Family Pension and
Gratuity Scheme. - Govt. Objections =
“Section 95. Power to make regulations.-
(1)The Board may, by notification
in the Gazette, make regulation providing for-
(a) the time and place of, and the manner of convening, the meeting of
the Board and its committees and Avas Samitis and their postponement and
adjournment;
(b) the procedure and the conduct of business at meetings of the Board
and of its committees and Avas Samitis;
(c) the appointment, constitution and procedure of committees;
(d) the delegation of powers by the Housing Commissioner and officers of
the Board;
(e) the duties of officers and servants of the Board;
(f) the conditions of services of officers and servants of the Board;
(g) the preparation of plans and estimates for works;
(h) the preparation of budgets and estimates;
(i) the authority on which moneys may be paid from the Board's fund;
(j) the manner of publication of public notices;
(k) the stamping of facsimile of signatures of the Housing Commissioner
and officers of the Board on notices, bills and other documents;
(l) the fees payable for copies of documents, estimates and plans issued
by the Board;
(m) the management, use and allotment of buildings constructed under any
housing or improvement scheme;
(n) any other matter which is to be or may be provided for by regulations
under this Act or the rules.
(2) If any regulations is repugnant to any rule then the rule whether
made before or after the regulations shall prevail and the regulation shall
to the extent of the repugnancy be void.”
A perusal of clause (f) of Section 95(1), with clause (I) of Section 95(1)
would reveal, that the Vikas Parishad is vested with the right to make
regulations, so as to extend to its employees a scheme in the nature of
Pension/Family Pension and Gratuity Scheme i.e., a scheme similar to the
one framed by the Vikas Parishad on 19.5.2009.
15. For the reasons recorded hereinabove, we find no merit in this
appeal, and the same is accordingly dismissed.
16. 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 16.1.2009. This Court having entertained the petition filed
by the appellant, passed interim directions on 7.8.2012, 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
19.5.2009. As a result, employees governed by the notification dated
19.5.2009, were paid their retiral dues under the Contributory Provident
Fund Scheme. Since we have now affirmed the impugned judgment of the High
Court, dated 16.1.2009, it is apparent that all the eligible employees of
the Vikas Parishad will be governed by the notification dated 19.5.2009.
They will therefore be entitled to pensionery 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
behest of the State of Uttar Pradesh. In the above view of the matter, we
direct the Vikas Parishad to release the pensionery benefits to the retired
employees governed by the notification dated 19.5.2009, within three months
from today. While determining the pensionery 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 at the rate of 9% per annum. 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 concerned
employees.
2014 - Sept. Month - http://judis.nic.in/supremecourt/imgst.aspx?filename=42000
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6307 OF 2010
State of Uttar Pradesh ..Appellant
versus
Preetam Singh and others ..Respondents
J U D G M E N T
J.S.KHEHAR, J.
1. The Uttar Pradesh Avas Evam Vikas Parishad (hereinafter referred to
as the 'Vikas Parishad') is a corporate body. It came into existence,
consequent upon the promulgation of the Uttar Pradesh Avas Evam Vikas
Parishad Adhiniyam, 1965 (hereinafter referred to as the '1965 Act'). The
employees of the Vikas Parishad were members of a Contributory Provident
Fund Scheme. The Vikas Parishad desired to grant its employees better
retiral benefits. A proposal was made, to extend pensionery benefits to
the employees of the Vikas Parishad, in place of the existing Contributory
Provident Fund Scheme. In furtherance of the aforesaid objective, a
resolution dated 21.2.1995 was passed, proposing to replace the existing
Contributory Provident Fund Scheme, to the Pension/Family Pension and
Gratuity Scheme. Before implementation of the resolution dated 21.2.1995,
the Vikas Parishad considered it expedient to consult the State Government.
In response to the afore-mentioned consultation, the State Government
through a communication dated 16.5.1996 approved the afore-stated
substitution conditionally. The conditions depicted in the aforesaid
approval dated 16.5.1996, are being extracted hereunder:
“Kindly refer to your letter no. 213/P-1 dated 24.4.1995 on the aforesaid
subject. In this regard, I have been directed to say that State Government
has no objection to the proposal of implementing Pension/Family Pension &
Gratuity Scheme in place of C.P.F. Scheme in Uttar Pradesh Avas Evam Vikas
Parishad. But subject to condition that no financial assistance will be
given by the State Government for implementation of this Scheme and this
Scheme will be run by the Board itself from the revolving funds created by
it. “
(emphasis is ours)
2. Consequent upon the receipt of the aforesaid approval from the State
Government, the Vikas Parishad circulated a letter dated 9.7.1996 requiring
its employees to submit their options, as to whether they were desirous of
shifting to the Pension/Family Pension and Gratuity Scheme, in place of the
existing Contribution Provident Fund Scheme.
3. At the instant juncture, a very vital letter came to be issued by the
State Government on 30.09.1997. Relevant extract of the aforesaid letter
is being reproduced hereunder:
“I have been directed to say that in order to implement the subject scheme,
it is not necessary to initiate any proceedings required under Clause (c)
of the Employees Provident Fund & Miscellaneous Provisions Act, 1952 of the
Central Government. Because Avas Evam Vikas Parishad is governed by the
provisions of Uttar Pradesh Avas Evam Vikas Parishad Act, 1965 and specific
provisions to this effect have been laid down in Section 95 of the said
Act, 1965 according to which necessary proceedings are to be initiated for
obtaining option from the employees for accepting and/or not accepting the
proposed Pension Scheme.”
(emphasis is ours)
A perusal of the aforesaid letter reveals, that even though the State
Government had granted conditional approval to the Pension/Family Pension
and Gratuity Scheme, through its communication dated 16.5.1996, the State
government expressed the opinion, that the Vikas Parishad did not need the
approval of the State Government for the implementation of the
Pension/Family Pension and Gratuity Scheme. Insofar as the instant aspect
of the matter is concerned, the State Government in its letter dated
30.09.1997 clearly informed the Vikas Parishad, that it had the power to
deal with the above issue of its own, under Section 95 of the 1965 Act.
4. Based on the conditional approval granted by the State Government
through its communication dated 16.5.1996, and also the clarificatory
letter issued by the State Government on 30.09.1997, the Vikas Parishad
passed a resolution on 5.11.1997 approving the Pension/Family Pension and
Gratuity Scheme. In granting the aforesaid approval, the Vikas Parishad
followed the pensionery scheme applicable to civil servants of the State of
Uttar Pradesh.
5. Before the resolution dated 5.11.1997 could be implemented, the
Director General of Bureau of Public Enterprises addressed a communication
dated 19.11.1997 to the State Government, informing it, that the Vikas
Parishad had not sought its approval before the implementation of the
Pension/Family Pension and Gratuity Scheme. In sum and substance, the
Director General of Bureau of Public Enterprises informed the State
Government, that the action taken by the Vikas Parishad in implementing the
above scheme without its approval, was not in consonance with law. On the
receipt of the letter from the Director General of Bureau of Public
Enterprises, the State Government by its order dated 26.11.1997 stayed the
implementation of the Pension/Family Pension and Gratuity Scheme. Whilst
taking the above action, the State Government constituted a Sub-Committee
to examine the varicity and viability of the conversion of the
Contributory Provident Fund Scheme to the Pension/Family Pension and
Gratuity Scheme, not only with reference to employees of the Vikas
Parishad, but with reference to employees of other Statutory Corporations,
Development Authorities and Nigams in the State of Uttar Pradesh. The
aforesaid Sub-Committee, under the Chairmanship of the Chief Secretary of
the State, held a meeting on 3.10.1998. In the above meeting, Sub-
Committee arrived at the conclusion, that there was no justification for
the implementation of the Pension Scheme in any Statutory Corporations,
Development Authorities or Nigams in the State of Uttar Pradesh. It was
also the view of the Sub-Committee that the existing Contributory Provident
Fund Scheme, should be continued for all the employees, for the time
being.
6. Even though the above recommendation was made by the Sub-Committee,
yet the Sub-Committee on 2.2.1999 expressed the view, that the aforesaid
general determination recorded in its meeting dated 3.10.1998, should not
be made applicable to the Vikas Parishad. Taking into consideration the
excellent financial condition of the Vikas Parishad, the Sub-Committee
observed that the Vikas Parishad should be permitted to take steps to
introduce the Pension/Family Pension and Gratuity Scheme. It was however
clearly indicated, that the Pension/Family Pension and Gratuity Scheme if
introduced, for employees of the Vikas Parishad, the same would not create
any financial liability on the State Government.
7. Based on the recommendations of the sub-Committee (in its meeting
dated 2.2.1999), the State Government passed an order dated 14.9.1999,
withdrawing its ban/restriction on the implementation of the Pension/Family
Pension and Gratuity Scheme. Relevant extract of the letter dated
14.9.1999 is being reproduced below:
“In this regard, I have been directed to say that government after due
consideration in the matter has decided to withdraw its bar/restriction
imposed on the implementation of the subject Pension Scheme for the
employees of the Board, subject to following conditions -
(1) Implementation of the Pension Scheme in the Board will be completely
different from the pension being given to the employees of the State
Government and this Scheme will be developed in the form of a
distinct/separate trust based on C.P.F. and such a trust will be run and
operated by a Third Party Pension Fund Manager. This Pension Scheme shall
not have any connection/relation with the Pension Scheme of the government
servants in any manner whatsoever. This pension scheme will be completely
autonomous and will depend on the financial condition of the Pension funds;
(2) Money which will be deposited on this head/count, will not be spend
for any other count/head meaning thereby that money so deposited on this
count will be irreversible for any other purposes and it will be operated
by the Trust;
(3) Pension Scheme will be maintained financially on the basis of
contributions made by the Board towards C.P.F. and no money, apart from
above, will be paid either by the Board or by the State Government. Please
note that if this Scheme closes down due to any reason or due to non-
availability of pension funds, then in that eventuality neither the
Government nor the Board will be responsible for such a closure;
(4) Trust will be fully responsible for all the financial and economical
aspects of the funds of this Scheme, based upon arrangements made with the
Third Party Pension Fund Manager and Government/Board will not be
responsible for any loss whatsoever;
(5) Representatives nominated by the Secretary, Housing and Secretary,
Finance, will be amongst members of the Trust which will be created for the
implementation of the Pension Scheme of the Board;
(6) Commissioner, Housing and Financial Controller of the Board will be
personally responsible for ensuring strict compliance of the aforesaid
conditions; and
(7) These orders are being issued on the basis of consent accorded by the
Finance Department vide its D.O. No.140/99-C-Ten (1) dated 9.8.199.”
(emphasis is ours)
8. The aforesaid position was sought to be endorsed by the State
Government on 7.5.2003, wherein the State Government reiterated the
position, that no financial assistance will be provided by the State
Government to the Vikas Parishad for implementation of the Pension/Family
Pension and Gratuity Scheme.
9. All of a sudden, the State Government issued yet another letter dated
13.9.2005 staying the earlier Government order dated 7.5.2003 (relevant
extracts wherefrom have been reproduced hereinabove). Thereupon, through a
further communication dated 12.7.2007, the State government withdrew its
approval altogether. Through the above letter dated 12.7.2007, the State
Government clearly informed the Vikas Parishad, that it could not implement
the Pension/Family Pension and Gratuity Scheme. It further informed the
Vikas Parishad, that employees of Public Enterprises, Statutory
Corporations, Development Authorities and Nigams, who are covered by the
Employees Provident Fund and Miscellaneous Pensions Act, 1952 of the
Central Government, and those to whom different Contributory Provident Fund
Schemes were already applicable, were liable to be governed by the said
provisions and schemes.
10. The denial of permission by the State Government, as also, the
incorporations of the conditions mentioned above, was sought to be assailed
by the employees of the Vikas Parishad, before the High Court of Judicature
at Allahabad (Lucknow Bench)(hereinafter referred to as the 'High Court'),
by filing Writ Petition No. 582(SB) of 2000. The aforesaid writ petition
was allowed by the impugned judgment dated 16.1.2009. The orders issued by
the State Government dated 13.9.2005 and 12.7.2007 were expressly quashed.
A writ in the nature of mandamus was issued by the High Court to the Vikas
Parishad, requiring it to implement the Pension/Family Pension and Gratuity
Scheme. In compliance with the aforesaid direction, the Vikas Parishad
implemented the Pension/Family Pension and Gratuity Scheme, through a
notification dated 19.5.2009. Relevant extract of the aforesaid
notification is being reproduced hereunder:
“Now therefore, the U.P. Avas Evam Vikas Parishad, in exercise of the
power under clause (f), (i) & (n) of sub-section (1) of Section 95 of U.P.
Avas Evam Vikas Parishad Adhiniyam, 1965 (U.P. Act 1 of 1996) 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 officers and employees of the U.P. Avas Evam Vikas
Parishad :
1. Civil Service Regulations as applicable As amended
in U.P.
2. Uttar Pradesh Liberalized Pension -do-
Rules, 1961.
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 asr elated to Pension/Family
Pension/Gratuity -do-
6. Newly defined Contribtory rules according -do-
to notification no. Sa-3-379/das-2005-301(9)/2003
dated March 28, 2005 applicable to officers and
employees of State Govt., who have joined
services on April 01, 2005 or onwards
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.”
It would be pertinent to mention, that the aforesaid notification was
expressly extended to such employees of the Vikas Parishad, who were in
service on 1.1.1996. The Pension/Family Pension and Gratuity Scheme in
terms of the aforesaid notification, would be applicable only till the
introduction of the newly defined Contributory Fund Rules framed by the
State Government, as were applicable to employees of the Vikas Parishad who
had entered its service w.e.f. 1.4.2005.
11. In raising a challenge to the impugned judgment rendered by the High
Court on 16.1.2009, it was the vehement contention of the learned counsel
for the State of Uttar Pradesh, that the scheme could not have been
formulated, and given effect to in the absence of an express approval by
the State Government. Insofar as the instant contention is concerned,
learned counsel for the appellant placed reliance on the Uttar Pradesh
State Control Over Public Corporations Act, 1975. Our pointed attention
was invited to Section 2(1) thereof, which is being extracted hereunder:
“2(1) 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 emaneded
by the Uttar Pradesh University (Re-enactment and Amendemnt) 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 is ours)
Based on the aforesaid provisions, it was the submission of the learned
counsel for the appellant, that the State of Uttar Pradesh, through its
communications dated 13.9.2005 and 12.7.2007, must be deemed to have issued
directions to the Vikas Parishad, restraining it from implementing the
Pension/Family Pension and Gratuity Scheme. The aforesaid directions,
according to the learned counsel, were binding on the Vikas Parishad.
12. We have given our thoughtful consideration to the first contention
advanced at the hands of the learned counsel for the appellant. There can
be no doubt that it is open to the State Government to issue directions of
questions of policy to all Public Corporations in the State of Uttar
Pradesh, in furtherance of the mandate contained in Section 2(1) of the
1975 Act. It would however be pertinent to mention that the above
directions could be issued only in respect of questions of policy having a
nexus to the “discharge of its functions”. Insofar as the Vikas Parishad
is concerned, we are of the view that the functions of the Vikas parishad
are relatable only to the functions stipulated in Section 15 of the 1965
Act. Section 15 afore-mentioned is being reproduced hereunder:
“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 co-ordinate 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;
(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 co-operative 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 fulfill 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,
the Board may undertake, where it deems necessary, any of the following
functions, namely -
(a) to promote research for the purpose of expendinting 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 co-ordinate, 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, 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.”
In our view, the State of Uttar Pradesh, had the right to issue directions
only in respect of the functions assigned to the Vikas Parishad under
Section 15 of the 1965 Act. The conditions of service of employees, in our
considered view, do not constitute the functions of the Vikas Parishad, and
as such, we are satisfied that the directions contemplated under Section
2(1) of the 1975 Act, do not extend to the directions issued by the State
of Uttar Pradesh in the impugned orders dated 13.9.2005 and 12.7.2007. We
therefore find no merit in the first contention advanced by the learned
counsel for the appellant.
13. Insofar as the second contention is concerned, it was the vehement
contention of the learned counsel for the appellant, that the State of
Uttar Pradesh is to shoulder the financial liabilities of the Vikas
Parishad, in the event of its dissolution. Insofar as the instant aspect
of the matter is concerned, learned counsel for the appellant placed
reliance on Section 93 of the 1965 Act. The said provision is being
extracted hereunder:
93. Dissolution of the Board.-(1) If the State Government is of opinion
that the Boards has failed to carry out its functions under this Act or
that for any other reason, it is not necessary to continue the Board, it
may, by notification in the Gazette, dissolve the Board from such date as
may be specified in the notification.
(1) Upon the publication of a notification under sub-section (1)
dissolving the Board-
(a) the Adhyaksh, the Housing Commissioner and all members of the Board
shall, as from the date of dissolution, vacate their offices;
(b) all the powers and functions which may, by or under this Act, be
exercised and performed by or on behalf of the Board or the Housing
Commissioner shall, as from the date of dissolution, be exercised and
performed by, and all subsisting contracts, agreements and other
instruments to which the Board or the Housing Commissioner is a party or
which are in favour of the Board or the Housing Commissioner may be
enforced or acted upon, and all suits, appeals and other legal proceedings
pending by or against the Board or the Housing Commissioner may be
contined, prosecuted or enforced, by or against the State Government or
such authority or person as it may appoint in this behalf;
(c) the fund of and other properties vested in the Board shall vest in
the State Government; and
(d) all liabilities, legally subsisting and enforceable against the
Board, shall be enforceable against the State Government to the extent of
the fund and properties of the Board vested in it.
(3) Nothing in this section shall affect the liability of the State
Government in respect of debentures guaranteed by it under sub-section (2)
of Section 59.
(4) Notwithstanding anything contained in the foregoing provisions of
this Action, the State Government may at any time again establish a Board
under Section 3 and appoint a Housing Commissioner under Section 7, and
thereupon-
(a) the powers and function as well as the rights and liabilities in
relation to contracts, agreements and other instruments, and suits, appeals
and other legal proceedings referred to in clause (b) of sub-section (2)
shall re-vest in the Board or the Housing Commissioner, as the case may be
;
(b) the fund and other properties referred to in clause (c) of sub-
section (2) remaining with the State Government after meeting any
liabilities referred to in clause (d) thereof shall re-vest in the Board.”
Having perused Section 93 of the 1965 Act, we are satisfied, that under
clause (d) of Section 93(1), the financial liability transferable to the
State Government in the event of dissolution of the Board, is limited of
the fund and properties of the Board vested in it. In other words, the
State of Uttar Pradesh in case of dissolution of the Board, would only bear
the responsibility of discharging the liabilities, to the extent of the
properties of the Board which stand transferred to it. Thus viewed, we are
of the opinion that no financial liability would stand transferred to the
State Government, even in the event of the dissolution of the Vikas
Parishad. Accordingly, we find no merit even in the second contention
advanced at the hands of the learned counsel for the appellant.
14. Despite the objections raised by the learned counsel for the
appellant, we shall also venture to determine, whether the Vikas Parishad
was competent to frame regulations, whereby it could extend the
Pension/Family Pension and Gratuity Scheme to its employees. In this
behalf, it is relevant to examine Section 95 of the 1965 Act. The
aforesaid provision is being produced hereunder:
“Section 95. Power to make regulations.-(1)The Board may, by notification
in the Gazette, make regulation providing for-
(a) the time and place of, and the manner of convening, the meeting of
the Board and its committees and Avas Samitis and their postponement and
adjournment;
(b) the procedure and the conduct of business at meetings of the Board
and of its committees and Avas Samitis;
(c) the appointment, constitution and procedure of committees;
(d) the delegation of powers by the Housing Commissioner and officers of
the Board;
(e) the duties of officers and servants of the Board;
(f) the conditions of services of officers and servants of the Board;
(g) the preparation of plans and estimates for works;
(h) the preparation of budgets and estimates;
(i) the authority on which moneys may be paid from the Board's fund;
(j) the manner of publication of public notices;
(k) the stamping of facsimile of signatures of the Housing Commissioner
and officers of the Board on notices, bills and other documents;
(l) the fees payable for copies of documents, estimates and plans issued
by the Board;
(m) the management, use and allotment of buildings constructed under any
housing or improvement scheme;
(n) any other matter which is to be or may be provided for by regulations
under this Act or the rules.
(2) If any regulations is repugnant to any rule then the rule whether
made before or after the regulations shall prevail and the regulation shall
to the extent of the repugnancy be void.”
A perusal of clause (f) of Section 95(1), with clause (I) of Section 95(1)
would reveal, that the Vikas Parishad is vested with the right to make
regulations, so as to extend to its employees a scheme in the nature of
Pension/Family Pension and Gratuity Scheme i.e., a scheme similar to the
one framed by the Vikas Parishad on 19.5.2009.
15. For the reasons recorded hereinabove, we find no merit in this
appeal, and the same is accordingly dismissed.
16. 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 16.1.2009. This Court having entertained the petition filed
by the appellant, passed interim directions on 7.8.2012, 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
19.5.2009. As a result, employees governed by the notification dated
19.5.2009, were paid their retiral dues under the Contributory Provident
Fund Scheme. Since we have now affirmed the impugned judgment of the High
Court, dated 16.1.2009, it is apparent that all the eligible employees of
the Vikas Parishad will be governed by the notification dated 19.5.2009.
They will therefore be entitled to pensionery 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
behest of the State of Uttar Pradesh. In the above view of the matter, we
direct the Vikas Parishad to release the pensionery benefits to the retired
employees governed by the notification dated 19.5.2009, within three months
from today. While determining the pensionery 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 at the rate of 9% per annum. 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 concerned
employees.
….................….....................J.
[JAGDISH SINGH KHEHAR]
NEW DELHI;
…..................…....................J.
SEPTEMBER 23, 2014. [ARUN MISHRA]
ITEM NO.1 COURT NO.7 SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 6307/2010
GOVT. OF U.P. Appellant(s)
VERSUS
PREETAM SINGH & ORS. Respondent(s)
(with appln. (s) for exemption from filing O.T. and permission to file
additional documents and office report)
Date : 23/09/2014 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR
HON'BLE MR. JUSTICE ARUN MISHRA
For Appellant(s) Mr. P.N. Misra, Sr. Adv.
Mr. Abhisth Kumar,Adv.
Mr. Som Raj Choudhury, Adv.
For Respondent(s) Mr. Rakesh Dwivedi, Sr. Adv.
Mr. Vishwajit Singh,Adv.
Mr. Pankaj Singh, Adv.
Mr. Abhindra Maheshwari, Adv.
Mr. Jaideep Gupta, Sr. Adv.
Mr. Ajit Sharma, Adv.
Mr. Upander Mishra, Adv.
M/s. Temple Law Firm,Adv.(Not present)
UPON hearing the counsel the Court made the following
O R D E R
The appeal is dismissed in terms of the Reportable signed
judgment, which is placed on the file.
(Parveen Kr. Chawla) (Phoolan Wati Arora)
Court Master Assistant Registrar
