Allahabad High Court
Susheel Kumar Mishra vs State Of U.P.Thru ... on 6 February, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 4
Case :- WRIT - A No. - 32119 of 2019
Petitioner :- Susheel Kumar Mishra
Respondent :- State Of U.P.Thru Prin.Secy.Coop. Deptt. Lko And Ors.
Counsel for Petitioner :- Awadhesh Kumar Tiwari,Bhanu Pratap Singh,Dr.V.K.Singh
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for the petitioner and the learned Standing Counsel.
The petitioner has approached this Court challenging the order dated 31.5.2019 passed by the respondent no.1-Principal Secretary, Cooperative Department, Government of U.P. Civil Secretariat, Lucknow.
By the said order, the petitioner is denied the benefit of service from the year 1980 on the ground that he was initially appointed as Kurk Amin on commission basis and thereafter as salaried Kurk Amin w.e.f. 02.06.2008. It is claimed by the respondents in the impugned order that the petitioner was not a party in the case of State of U.P. Vs. Chandra Prakash Pandey; AIR 2001 Supreme Court 1298, therefore, he cannot be granted benefit of the said judgment.
Learned counsel for the petitioner has relied upon the judgment of the Supreme Court in the case of State of U.P. Vs. Chandra Prakash Pandey (Supra). The Paragraphs 9 & 13 to 17 of the same read as follows:-
"9.Undisputedly, the decision of the Allahabad High Court that the Kurk Amins, appointed on salary basis for realisation of dues of co-operative societies, held civil posts and became Government servant has attained finality as its correctness has not been challenged by the State of Uttar Pradesh by bringing the matter to this Court, rather the same got approval of this Court while remanding the matter to the High Court for considering the question whether cases of Kurk Amins appointed on commission basis stand on the same footing as that of Kurk Amins appointed on salary basis in whose cases it was declared that they held civil posts and would be entitled to the same salary as is payable to Kurk Amins of Revenue Department.
13. In the light of the foregoing discussions, we consider these appeals. In the impugned judgment under Civil Appeal Nos. 8467-68 of 1995, the Division Bench of the High Court after due consideration recorded its conclusion which runs thus:-
"It appears that the Collector was the appointing authority and the petitioners were being paid out the cost recovered according to provisions for the recovery of land revenue and that they had been given revised scale of pay having been performing the same duties and responsibilities as other Kurk Amins of other departments and that their counter parts on salary basis having been so found to hold civil posts by the Honble Supreme Court, as referred to herein-before, and that the petitioners were working under the control and supervision of Assistant Registrar of Co-operative Society and are performing public duties."
14. Likewise, in another detailed judgment under Civil Appeal No. 6075 of 1997, rendered by another Division Bench of the High Court upon the matter being remanded by this Court, the Court after due consideration came to the following conclusion:-
"It is not disputed that the appointing authority in case of both is the District Magistrate/Collector, the power to terminate the service of both the categories vests in the same authority, they are amenable to same disciplinary authority, the nature of their duties is the same and they exercise similar power. The Kurk Amin appointed on commission basis similarly enjoys and exercises the power to arrest a person, who is defaulter, can attach his property, which he can put to auction like his counter part on regular basis. A Kurk Amin on commission basis and on regular basis similarly follows the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1951 and U.P. Land Revenue Act, 1901 in so far as the recovery of land revenue.
Once the District Magistrate issues a recovery citation both the sets of Kurk Amins in order to execute the recovery follow the same procedure and exercise the powers and they are under the control of one and same authority. The Kurk Amin, be on commission basis or on regular basis, gets his salary from the Government exchequer out of 10 per cent collection charges realized as arrears of land revenue. It is, thus, clear that both the sets of Kurk Amins work in the same capacity under the control of the State Government and their appointment and duties fully comply with the tests laid down by the Supreme Court in the decision of State of Gujarat and another vs. Raman Lal Keshav Lal Soni and Others, 1983 (2) SCC 33:(AIR 1984 SC 161: 1983 Lab IC 391)."
15. From a bare perusal of the aforementioned decisions of the two different benches of the High Court it would be clear that after taking into consideration all relevant factors as laid down by this Court in its judgment referred to above, the High Court has come to the conclusion and recorded a finding of fact that Kurk Amins appointed on commission basis for recovery of outstanding dues of the cooperative societies were members of service and government servants. On behalf of the State, it has not been challenged that the aforesaid statements of facts in the two judgments are incorrect. During the course of arguments learned senior counsel appearing on behalf of the State made an unsuccessful attempt to refer to a scheme prepared by the Registrar of Cooperative Societies, but in view of the fact that neither any counter affidavit was filed before the High Court nor the said scheme was filed before this Court either along with the Special Leave Petitions or with any other affidavit, we are of the opinion that it is not possible for us to look into the said scheme as such the same can be of no avail to the State by its mere production in Court during the course of argument.
16. In view of the foregoing discussions, we do not find any infirmity in the judgments rendered by the High Court so as to be interfered with by this Court.
17. The appeals are, accordingly, dismissed but there shall be no order as to costs."
In the aforesaid judgment, the Supreme Court has affirmed the judgment of Allahabad High Court wherein the Kurk Amins are also directed to be treated as Government employees and are entitled for salary as is being paid to the regularly appointed Kurk Amins. Thus, the status of the petitioner is decided by the aforesaid judgment.
Once the status of the petitioner is decided by the aforesaid judgment, the respondent no.1-Principal Secretary, Cooperative Department, Government of U.P., Civil Secretariat, Lucknow could not have been taken a contrary view with regard to the law settled by the Supreme Court. Thus, the petitioner being a Kurk Amin appointed on 01.09.1980, is entitled for all the benefits since his appointment is in accordance with law as per his entire length of services.
In view thereof, the order dated 31.05.2019 passed by the respondent no.1-Principal Secretary, Cooperative Department, Civil Secretariat, Government of U.P., Lucknow, is hereby quashed. The respondent no.1-Principal Secretary, Cooperative Department, Civil Secretariat, Government of U.P., Lucknow, is directed to pass a fresh order with regard to the petitioner within a period of two months from the date a certified copy of this order is placed before him.
The writ petition is allowed.
(Vivek Chaudhary,J.)
Order Date :- 6.2.2023
Arjun/-
