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Patna High Court · body

2008 DIGILAW 1387 (PAT)

Swami Nath Sahu v. State of Bihar

2008-09-09

AJAY KUMAR TRIPATHI

body2008
ORDER : 1. In all these writ applications a basic relief has been sought by the petitioners who are Paid Managers attached with various Primary Agricultural Credit Societies for payment of their salaries for varying periods. The problem in payment of salary has basically arisen after the year 1993. 2 The Court has been assisted by various learned counsel for petitioners on their claims for payment of salary on a regular basis, which they assert is their right. 3. To give impetus to the co-operative movement in the State of Bihar various kinds of models were adopted and societies created to help people cooperate with each other and attain and sustain a level of economic well being. In this regard even at the grass root level Primary Agriculture Credit Society (PACS) as well as Large Size Multi-Purpose Co-operative Society (LMPCS) came to be established across the State. They were to be registered as District Cadre Society having their own entity as a registered society under Co-operative Societies Act. Since the concept of such societies and their working was not yet fully understood by the people or members at the helms of affairs, the State of Bihar floated a concept of getting Paid Managers appointed and attached with PACS or LMPCS. These Paid Managers were supposed to be trained not only in running the day to day affairs of the society in question but also impart education and knowledge to the members, to help them fulfill the object of the society. They were employees of the Societies concerned with no obligation on the State as an employer. The model byelaws of the District Cadre Co-operative Society were also formulated to help and regulate such societies. 4. The success of this experiment in co-operative movement need not be dealt with in detail but in totality it can be fairly recorded that they did not meet the object and purpose for which they were established. Various co-operative societies fell into bad times and it affected the interests of both, the members of the societies as well as the Paid Managers. Absence of regular resources and finance with the Primary Society led to non-payment of salary to many a Paid Managers especially after 1993. 5. State of Bihar while exercising power under Section 66B of the Bihar Co-operative Societies Act used to issue directions to the Co-operative Societies. Absence of regular resources and finance with the Primary Society led to non-payment of salary to many a Paid Managers especially after 1993. 5. State of Bihar while exercising power under Section 66B of the Bihar Co-operative Societies Act used to issue directions to the Co-operative Societies. Some of the directions were also related to corpus creation and payment to the Paid Managers. Circulars in this regard came to be issued on 31.5.1989, 28.12.1993, 12.9.2003 and 14.2.2005. The circulars are on record of these writ petitions. Special note however must be taken of circular dated 28.12.1993. By virtue of this circular some categorical guidelines were laid down with regard to creation of District Cadre Fund. How the contributions were to be made to the said cadre fund and then drawl to be done from the so-called Account No. 1 for payment of salary to the Paid Managers. It is also noticed that payments to the Paid Managers were not only based on the corpus from Account No. 1 but also linked with the performance of such paid Managers such as disbursement of loans and their collections. They had an important bearing on keeping the corpus of the District Cadre Fund afloat and salary flowing. 6. The 1993 circular become a matter of challenge in a writ application filed before Patna High Court which was the case of Bihar Rajya Sahkarita Prabandhak Sangh, Sitamarhi vs. The State of Bihar & other reported in 2000(3) PLJR 322 . A serious effort was made by the association to challenge the modality laid down for payment to PACS Managers, as per the Circular dated 28.12.1993. The Court after taking note of tile various submissions made on behalf of the petitioners did not interfere with the same. In other words no fault was found with the modality or change in the manner of payment of salary to Managers of PACS which was the issue in the case. Thereafter from time to time further clarifications have been issued by the State of Bihar which are circulars dated 12.9.2003 and 14.12.2005. The position which stand therefore as of today is that payment of salary to PACS Managers is not in dispute but the modality of payment which is the cause of irritant as well as non-payment to many of the PACS Managers including the present petitioners needs to be decided in the present writ applications. 7. The position which stand therefore as of today is that payment of salary to PACS Managers is not in dispute but the modality of payment which is the cause of irritant as well as non-payment to many of the PACS Managers including the present petitioners needs to be decided in the present writ applications. 7. A serious submission on behalf of the petitioners is that these PACS Managers have been given a pay scale by virtue of judicial interventions. They have even been granted dearness allowance. The very nature of their emoluments mean that they are entitled to payment of regular salary irrespective of the fund being available in this regard. Though effort has been made, at times, and even urged at bar, that there was a kind of responsibility upon the State to meet this obligation but in view of the strict schemes and model bye-laws this aspect has not been pushed beyond a point. 8. The entitlement of the petitioners to demand and get salary cannot be disputed and efforts have been made after 1993 circular to seek a direction upon the respondents including the State Co-operative Bank as well as PACS societies to make regular payment to the PACS Managers and also to settle their accounts. A recent litigation in this regard is the case of Shail Devi vs. The State of Bihar & other, reported in 2007(1) PLJR 533 . Even in this case a direction had been sought upon the respondents to make payment of salary due, to late husband of the petitioner, for varying periods. After taking note of the past litigations in this regard the Court was pleased to record in paragraph 11 of the JUDGMENT : as follows:– "Para 11. In view of the decision of this Court dated 15.1.2003 passed in Bihar Rajya Sahkarita Prabandhak Sewa Sangh's case it is evident that in the absence of any fund in ORDER :to make payment of salary to the Paid Managers, no positive direction can be given for such payment. Any payment can only be made in accordance with the scheme of payment envisaged which substantially depends upon the performance of the Paid Managers of the PACS themselves depending upon the amount of collection made by them. Any payment can only be made in accordance with the scheme of payment envisaged which substantially depends upon the performance of the Paid Managers of the PACS themselves depending upon the amount of collection made by them. So far as the subsidy of the State Government is concerned, the stand in the counter affidavit of the respondent is that the amount due to the petitioner's husband from the same has already been paid." 9. Keeping in mind the judicial pronouncements in Bihar Rajya Sahkarita Prabandhak Sangh (supra) as well as Shail Devi (supra) the Court has certain reservation in extending or interpreting the circulars issued by the State Government to beget relief to the petitioners by directing regular payment of their salary by ignoring the modality laid down in this regard. Since the validity of the modality right from the year, 1993 has been upheld by the High Court and reaffirmed in various decisions thereafter, the Court has no option but to hold that even though petitioners are entitled for payment of their salaries but the obligation of payment shall be met from the corpus which has to be created in which the petitioners as Paid Managers have a major contribution to make. If in the District Cadre Fund Account No. 1 there is no money available for payment, then a direction cannot be issued under Article 226 of the Constitution, contrary to the circulars and the rules laid down by the State Government while exercising power under Section 66B of the Act, to make payments to these petitioners irrespective of the policy in this regard. 10. To sum up since one of the earliest circulars of the year, 1993 has been upheld by the High Court in the case of Bihar Rajya Sahkarita Prabandhak Sangh (supra) and the subsequent circulars have only reiterated and explained the basic framework, no open direction can be issued for payment of salary to these petitioners on a regular basis. 11. It is however clarified in each and every case that if the petitioners fulfill the criteria and the necessary funds are available from the District Cadre Fund, the respondents concerned have a duty to settle the accounts and make payments in this regard if not already done. 11. It is however clarified in each and every case that if the petitioners fulfill the criteria and the necessary funds are available from the District Cadre Fund, the respondents concerned have a duty to settle the accounts and make payments in this regard if not already done. If any claim is disputed or negated then the concerned respondent is duty bound to furnish requisite facts and figures why the salary for the period claimed or in portion thereof cannot be paid to these petitioners. 12. With the above findings recorded in law and facts on the issues, all these writ applications are disposed of to be dealt with by the respondents accordingly.