Lalit Mohan Mishra vs State Of U.P. & Others

Heard Shri Ram Narain Gupta and Shri Karunakar Srivastava, learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents.

At the outset, learned counsel for the petitioner, Shri R.N. Gupta has stated that since the petitioner is not a government servant, as such he is not entitled to any post retirement dues as is available and admissible to a government servant. He, thus, states that in view of the aforesaid legal position prayer II-A may be rejected as not pressed. The prayer so made is granted.

The petitioner is said to have been engaged as Pairvi Clerk to do pairvi of cases concerning Gaon Sabha. He is said to have been engaged initially in the year 1980 but was getting a remuneration of Rs.500/- per month which led the petitioner to file a writ petition before this Court, namely, Writ Petition No.4373 (S/S) of 1995. The said writ petition was finally disposed of by this Court by means of the judgment and order dated 15.01.2004, whereby a direction was issued to the respondents to consider the case of the petitioner for grant of minimum of the pay scale and also for creating a post of Pairvi Clerk. Since the aforesaid order dated 15.01.2004 was not complied with, the petitioner filed contempt petition before this Court, namely, Contempt Petition No.398 of 2005, wherein an order was passed on 07.07.2006 observing therein that in view of certain orders passed by the respondents, the parties to the contempt petition were required to consider the case of the petitioner for giving him regular pay scale and they were not required to pursue the matter for creation of post of Pairvi Clerk. In pursuance of the said order dated 15.01.2004 and the order dated 07.07.2006 passed by this Court in writ petition as also in the contempt matter, the District Magistrate, Gonda passed an order on 02.02.2008 providing therein that the petitioner shall be paid regular pay scale of Rs.3050-4590. The petitioner thereafter was getting his salary in the aforesaid pay scale, however, by means of the impugned order dated 31.07.2013 the petitioner has been ordered to be relieved on attaining the age of 60 years. It is this order dated 31.07.2013 passed by the Additional District Magistrate, Gonda, which is under challenge in this writ petition.

The reason indicated in the impugned order passed by the Additional District Magistrate, Gonda is that the Court had earlier directed to grant the petitioner his pay in the regular scale of pay and accordingly he was granted pay scale of Rs.3050-4590 with effect from 02.02.2008 as revised in the pay scale of Rs.5200-20200, Grade Pay 1900. The said order further recites that the petitioner has been paid salary in the said scale and since the petitioner''s date of birth is 10.07.1953 and the age of superannuation of the incumbents working in the clerical cadre is 60 years, as such the petitioner would retire with effect from 31.07.2013. The petitioner by the impugned order was also directed to hand over his charge to the District Government Advocate (Revenue), Gonda.

The question before this Court for consideration is as to whether the petitioner could be retired at the age of 60 years, which is the age of superannuation fixed by the State Government for retirement of the post of clerical cadre of the State Government employees. The reason indicated in the impugned order is that since the age of superannuation of the clerical cadre of the State Government employees is 60 years, as such the petitioner would also retire on his attaining the age of superannuation of 60 years on 31.07.2013.

For determining as to whether the incumbents working on the post of Pairvi Clerk are government employees or not, certain provisions of U.P. Zamindari Abolition and Land Reforms Act, the rules framed thereunder and Uttar Pradesh Gram Sabha, Gram Panchayat and Bhumi Prabandhak Samiti Manual (herein after referred to as "Gram Sabha Manual") need to be examined.

Provisions relating to appointment of Pairvi Clerks can be found in paragraph 129 of Gram Sabha Manual, according to which, Collector of the district can appoint a pairvi clerk in the district to assist the panel lawyers and the Chairman of Bhumi Prabandhak Samiti for doing pairvi of cases in different courts.

Paragraph 129 of the said Gram Sabha Manual is quoted herein below: "129. Appointment of pairvi clerk.-Collector of the district can appoint a pairvi clerk in the district to assist the panel lawyers and the Chairman of Bhumi Prabandhak Samiti for doing pairvi in different courts situated at the headquarters of the district, if the number of cases of the Gram Sabha is more than 800. While sanctioning for extending the terms of the appointment of pairvi clerk number of pending cases of Gram Sabha every year will be kept in view. Proposal of recommendation of Pairvi Clerk shall be sent to the Commissioner of the Division through Collector. For enhancement of number of Pairvi Clerk each year the recommendation of Board shall also be essential. At the time of acceptance of renewal of posts for forthcoming year it will be considered to the recommendation of the Collector and Commissioner with regard to cases of Gram Sabha. [Vide G.O. No.561 (M)-R/ID-2808-ID-59, dated 13th September, 1960]".

Service Conditions of the Pairvi Clerk.- Service conditions of the pairvi clerk will be the following:

(1) There will be compact pay of Rs.125 for the post and no dearness allowance, etc. shall be made separately.

(2) Post will be temporary, which will be liable to be terminated on the notice of one month by the Collector.

(3) Collector will appoint pairvi clerk in consultation with District Government Counsel (Revenue). He will exercise all the powers of appointing authority in which there should be in specific cases also for censor or rights of fine for misconduct or negligence.

(4) A candidate for the post should have atleast five years experience of litigation and case work.

(5) There is no prescribed qualification for this post but preference will be given to those candidates who have passed High School Examination or higher examination thereto.

(6) The aforesaid clerk will be the whole time servant of the Gram Sabha in the district. Besides assisting District government Counsel (Revenue) and (Civil) and, other Panel lawyers along with Chairman of Bhumi Prabandhak Samiti shall keep close contact with Revenue Assistants and case clerk for performing the work pertaining to cases of Gram Sabha.

(7) He will render also general assistance to the office of the District Land Reforms Officer in maintenance of the personal ledger account of the Consolidate Gram Fund but he will not be allowed to handle money transaction. [Vide G.O. No. 88/5/73 (177)-Rajaswa-7, dated 15th September, 1973]."

Paragraph 130 of Gram Sabha Manual provides for the expenditure to be met from the Consolidated Gram Fund. According to paragraph 130(2)(B), the payment of expenditure incurred on the engagement of a clerk is appointed by the Collector to assist the panel lawyers and Chairman in doing pairvi in the various courts is to be made from the Consolidated Fund. Para 130(2)(B) of Gram Sabha Manual is quoted herein below:- "130(2)(B). the payment of expenditure incurred on the engagement of a clerk, if any, is appointed by the Collector with the previous approval of the Board of Revenue, U.P., to assist the panel lawyers and Chairman in doing pairvi in the various courts at the headquarters of the district."

It may also be noticeable that Gram Sabha Manual is, in fact, a compilation or compendium of various Government Orders issued from time to time for appropriate function and discharge of duties of and by the Gram Sabhas. The said compendium of Government Orders as exists in the form of Gram Sabha Manual is referable to section 126 of U.P.Z.A.& L.R Act, which empowers the State Government to issue such orders and directions to [the Land Management Committee] as may appear to be necessary. Sub section 2 of Section 126 casts a duty on [the Land Management Committee] to carry out such orders and comply with such directions as are issued under section 126(1) of U.P. Z.A. & L.R. Act by the State Government. Section 126(1)(2) of U.P. Z.A. & L.R. Act are extracted herein below for ready reference:- "126. Land Management Committee to carry out orders and directions of the State Government.-(1) the State Government may issue such orders and directions to [the Land Management Committee] as may appear to be necessary for purposes of this Act.

(2) It shall be the duty of [the Land Management Committee] and (its) office-bearers to forthwith carry out such orders and comply with such directions."

Accordingly, the Government Orders contained in Gram Sabha Manual is referable to Section 126 of U.P.Z.A. & L.R. Act and assumes the character of statutory orders and hence, the same are binding.

As noticed above, the appointment of Pairvi Clerks is provided for in paragraph 129 of the Gram Sabha Manual which inter alia provides for service conditions of pairvi clerks. According to the aforesaid provisions of para 129 of Gram Sabha Manual, the Collector is empowered to appoint pairvi clerk. The said provision also states that there is no prescribed qualification for the post but preference will be given to those candidates, who have passed High School Examination or higher examination. It further provides that the Pairvi Clerk will be a whole time servant of the Gram Sabha in the districts and besides assisting District Government Counsel (Revenue) and (Civil) and, other Panel lawyers, shall also keep close contact with the Revenue Assistants and case clerks for performing the work pertaining to cases of Gram Sabhas. He is also required to give general assistance to the office of District Land Reforms Officer in maintenance of personal ledger account of the Consolidated Gram Fund, however, there is a prohibition on pairvy clerks for handling money transaction concerning Gram Sabha Funds. From the aforesaid provisions is abundantly clear that pairvi clerk is an employee of Gram Sabha, however, his appointing authority is Collector. According to condition no.2 of service conditions of the pairvi clerk as finds mentioned in paragraph 129 of Gram Sabha Manual, the post of Pairvi clerk will be temporary which will be liable to be terminated on the notice of one month by the Collector.

Consolidated Gaon Fund has been defined under section 3(6-B) of U.P.Z.A.& L.R. Act to mean the Consolidated Gaon Fund to be constituted under section 125-A. In fact U.P.Z.A. and L.R. Act envisages two funds for the Gaon Sabhas, the one defined in Section 124 which is known as Gaon Sabha Fund and the other constituted under Section 125-A which is known as Consolidated Gaon Fund. For what purposes the Consolidated Gaon Fund is to be utilized is given in Section 125-A, according to which, Consolidated Gaon Fund shall be applied inter alia for payment of fees and allowances of panel lawyers, payment of expenses incurred in connection with conduct and prosecution of suits by or against Gaon Sabha, payment of expenditure incurred on development of lands of common utility and payment of any other sum which the State Government may by general or specific order declare to be an appropriate charge on the Fund. Section 125-A of U.P.Z.A.& L.R. Act is quoted below:- "125-A. Consolidated Gaon Fund.-[(1) There shall be constituted for each district a Consolidated Gaon Fund to which shall be credited-

(a) the amount of damages or compensation referred to in the proviso to sub-section (1) of section 124; and

(b) all contributions payable under sub-section(2)]

(2) Every Gaon Panchayat in the district shall pay to the Collector annually such contribution not exceeding [twenty-five per centum] of the total amount credited to the Gaon Fund under subsection (1) of section 124 as may be fixed by the Collector in the manner prescribed.

(2) All moneys held or required to be held in the Consolidated Gaon Samaj Fund under this section before its amendment by the Uttar Pradesh Kshettra Samitis and Zila Parished Adhiniyam, 1961, shall stand transferred to and be credited to the Consolidated Gaon Fund.

(4) The fund shall be applied to-

(a) the payment of fees and allowances of the panel lawyers appointed under section 127-B;

(b) the payment of expenses incurred in connection with the conduct and prosecution of suits, applications or other proceedings by or against the Gaon Sabha or the Land Management Committee under this Act;

(c) the payment of expenditure incurred on the development of lands of common utility; and

(d) [the payment of any other sum which the State Government may by general or special order declar to be an appropriate charge on the fund.]"

As observed above, para 130 (2) of the Gram Sabha Manual was added by a Government Order dated 10.10.1975 which provides that payment of expenditure incurred on engagement of a clerk to assist the panel lawyers shall be met by the Consolidated Gram Fund. Thus, a conjoint reading of the aforequoted provisions, specially paras 129 and 130 of the Gram Sabha Manual, Section 125-A of U.P.Z.A& L.R. Act and Rule 112-B of the rules made thereunder make it clear beyond any doubt that pairvi clerks are the employees of the Gram Sabha to be appointed by the Collector and are to be paid their remunerations from the Consolidated Gram Fund. Except the service conditions as prescribed in para 129 of the Gram Sabha Manual, learned counsel appearing for the parties could not produce any other legal provisions governing the service conditions of the incumbents holding the post of Pairvi Clerk. The conditions of service of Pairvi Clerk as enumerated in para 129 of Gram Sabha Manual does not disclose any minimum or maximum age either for appointment or any age for superannuation.

It is in this context that the learned counsel for the petitioner has stated that the petitioner could not have been retired on his attaining the age of 60 years for the reason that in various other districts and in past the Pairvi Clerks have been permitted to work and discharge their duties even after attaining the age of 60 years and have in many cases voluntarily submitted their resignation on attaining an advance age.

The impugned order passed by the Additional District Magistrate, Gonda dated 31.07.2013 as is contained in annexure no.1 states that since the government employees working in the clerical cadre are to attain the age of superannuation on reaching the age of 60 years, as such the petitioner would also retire on his attaining the age of 60 years.

From the discussions made in the previous paragraphs of this judgment, it is clear that incumbents holding the post of pairvi clerks are neither government servants nor can their conditions of service be compared with those working as government servants in clerical cadre. The pairvi clerks are employees of Gram Sabha, though are appointed by the District Magistrate/Collector and their conditions of service are to be governed not by the provisions contained in Financial Handbook applicable to the government servants or to any other rule which governs the conditions of service of clerical cadre of the State Government but by the provisions contained in para 129 which inter alia provides for conditions of service of pairvi clerks as well. However, para 129 is absolutely silent about the age of superannuation of the pairvi clerks. Consequently, the reasons indicated in the impugned order dated 31.07.2013 cannot be permitted to be sustained as the Additional District Magistrate while passing the said order has drawn comparison of the petitioner who was appointed as Pairvi Clerk with incumbents in the clerical cadre of the State Government. If the reasons indicated in the impugned order wherein the petitioner has been retired on the ground that the government employees in the clerical cadre are to be retired on their attaining the age of superannuation of 60 years is taken to be correct, the same would lead to a situation where the petitioner would even be said to be entitled for pension and other pensionary benefits admissible to government servants.

In view of the prescriptions available in U.P.Z.A. & L.R. Act and Gram Sabha Manual, as discussed above, Pairvi clerks are not government servants and hence they cannot be said to be entitled for pensionary benefits or any other post retirement benefits which are otherwise available to a government servant, however, at the same time the determination of their age of superannuation or retirement can also not be done taking into account the age of superannuation admissible to a government servant.

For the reasons disclosed above, the impugned order dated 31.07.2013 passed by the Additional District Magistrate, Gonda as is contained in annexure no.1 to the writ petition cannot be permitted to be sustained. Accordingly, the writ petition is allowed. The impugned order dated 31.07.2013 passed by the Additional District Magistrate, Gonda as is contained in annexure no.1 to the writ petition is hereby quashed.

The petitioner shall be permitted to work as pairvi clerk, however, his continuance shall be subject to physical and mental fitness to be examined by the Chief Medical Officer concerned every six months. It is further provided that since the petitioner has not discharged any function since 31.07.2013, he shall not be entitled to be paid any back wages or remunerations. There will be no order as to costs.