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2017 DIGILAW 91 (ALL)

MOHD. ARIF v. STATE OF U. P.

2017-01-09

DEVENDRA KUMAR ARORA

body2017
JUDGMENT Hon’ble Dr. Devendra Kumar Arora, J.—Heard learned Counsel for the petitioner, namely, Sri V.K. Jaiswal and the learned State Counsel. 2. The trivial question involved in this writ petition is that whether the service rendered by the petitioner on the post of Co-operative Supervisor can be considered for the payment of pensionsary benefit in addition to the services rendered by the petitioner as Co-operative Inspector, Group-II. 3. According to the Standing Counsel, the post of Co-operative Supervisor is a non-State cadre and has been created under U.P. Co-operative Union Ltd. As per provisions of Subordinate Co-operative Service Rules, 1979 the promotion on the post of Co-operative Inspector is made with the criterion seniority subject to rejection of unfit. The character Roll entries and other service records are obtained from the parent institution PCU, and thereafter the Co-operative Supervisors are considered for promotion. The petitioner is not entitled for notional promotion on the post of Co-operative Inspector Grade-2 w.e.f 22.5.1995. Moreover, the services rendered by the petitioner on the post of Co-operative Inspector Grade-2 are less than 10 years and, therefore, the petitioner is not eligible for pensionary benefits as per Government Order dated 1.7.1989. The services rendered by the petitioner on the post of Co-operative Supervisor are non-state cadre services and, therefore, as per Section 361 of the Co-operative Service Rules, the said period cannot be taken into account for pensionary benefits. 4. The question as to whether the period of service rendered by persons like the petitioner as Co-operative Supervisor (which is a non-Governmental post) can be reckoned in the case of Co-operative Inspectors Grade II (Government post) for the purpose of computing pensionary benefits as Government servant was the subject-matter before the Hon’ble Supreme Court in the case of State of U.P. and others v. Ruk Mangal Singh Rathaur & other connected matters [Civil Appeal No. 7318 of 2003 decided on 28.11.2006]. The Apex Court after examining the provisions of Co-operative Federation Authority (business) Regulation, 1976 and Subordinate Co-operative Service Rules, 1979 held as under : “A fascicule reading of the definitions of Rules 4(d) and 4(p) clearly indicates the intendment of the legislature. The Apex Court after examining the provisions of Co-operative Federation Authority (business) Regulation, 1976 and Subordinate Co-operative Service Rules, 1979 held as under : “A fascicule reading of the definitions of Rules 4(d) and 4(p) clearly indicates the intendment of the legislature. Definition in rule 4(d) is the clear intendment of the legislature that the Co-operative Supervisor shall be under the employment of the Co-operative Institutions; whereas in Rule 4(o) village level workers have been brought under the employment of the community development department in the State of Uttar Pradesh. Therefore, wherever the legislature intended to do so, they have done it expressly. In the case of Co-operative Supervisor the legislature intended that the Supervisor is under the employment of the Co-operative Institutions and the intendment of the legislature is clearly expressed in Rule 4(d) of the Rules. There is no doubt in our mind, therefore, that the post of Co-operative Supervisor was completely kept out of the purview of the Government department.” [emphasis supplied] 5. In view of the aforesaid enunciation of principle of law by the Apex Court, the petitioner cannot be granted relief as claimed by him and the judgments relied upon by the petitioner are of no avail after the aforesaid verdict of the Apex Court as. It may be added that the Apex Court negated the claim of the respondents-employees with regard to attainment of finality of the judgment of this Court in some other cases and set aside the judgment of this Court holding otherwise. 6. Apart from above, it would be relevant to point out that in the counter-affidavit filed by the Registrar, Co-operative Societies, Lucknow, it has been mentioned in paragraph 4 of the counter-affidavit that petitioner’s name was considered for promotion to the post of Co-operative supervisor, in the meeting dated 31.1.1994 but he was not found fit for promotion. Ultimately, the petitioner was promoted to the post of Co-operative Inspector Grade-2 vide order dated 30.9.2003. The petitioner accepted the said promotion without any objection and did not raise any grievance. The petitioner retired from service on 31.8.2008 from the post of Co-operative Inspector Grade-II/Assistant Development Officer but he filed the instant writ petition in the year 2010. Ultimately, the petitioner was promoted to the post of Co-operative Inspector Grade-2 vide order dated 30.9.2003. The petitioner accepted the said promotion without any objection and did not raise any grievance. The petitioner retired from service on 31.8.2008 from the post of Co-operative Inspector Grade-II/Assistant Development Officer but he filed the instant writ petition in the year 2010. This itself reflects slackness on the part of the petitioner and there is no explanation in the writ petition as to why he remained idle for such a long period for claiming promoted from the date [22.5.1995] persons junior to him were promoted. The law is well-settled that delay defeats justice and the Court comes to rescue of only those persons, who are vigilant of their rights. 7. For the reasons aforesaid, the writ petition is liable to be dismissed, which is hereby dismissed.