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Allahabad High Court · body

2018 DIGILAW 649 (ALL)

CHANDRA PAL SINGH v. STATE OF U. P.

2018-03-16

DEVENDRA KUMAR ARORA, RAJNISH KUMAR

body2018
JUDGMENT Hon’ble Rajnish Kumar, J.—These two writ petitions have been filed by the retired employees of the U.P. Avas Evam Vikas Parishad, a statutory authority constituted under the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as “Adhiniyam 1965”), who have approached to this Court for a direction to the respondents to revise their pay as per Sixth Pay Commission w.e.f. 1.1.2006, and release consequential difference of salary till their retirement, and also fix their pension and gratuity etc. at par with the employees of State Government. 2. Writ Petition No. 12645 of 2016 has been filed with the following prayers: (i) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to re-determine the salary of the petitioners till their retirement and thereafter their pensionary benefits on the basis of Sixth Pay Commission Recommendation w.e.f. 1.1.2006. (ii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to apply the provisions of the Government Order No. 1508 dated 8.12.2008 on the officers of the Parishad, while suitably reading down the restrictive provisions about its non-application on the employees of U.P. Awas Evam Vikas Parishad in view of the Pension Regulations dated 19.5.2009 read with judgment and order of the Hon’ble Apex Court dated 23.9.2014. (iii) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to re-determine/re-fix the salary of the petitioners in terms of Sixth Pay Commission Recommendation w.e.f. 1.1.2006 till their retirement and thereafter re-determine their pensionary benefits as per revised last pay drawn and pay arrears of salary and revised pensionary benefits from the date of their retirement till date, in accordance with G.O. dated 8.12.2008, after deducting the amounts already paid towards pensionary benefits of the petitioners, within a period of 2 months. (iv) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to grant the benefit of maximum gratuity of Rs. 10 lac to the petitioners as per Government Order dated 8.12.2008. (v) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay arrears of salary & pensionary benefits calculated in terms of the Sixth Pay Commission Recommendation, including enhanced gratuity of Rs. 10 lacs, alongwith payment of interest at the prevailing Bank rates, within a period of 2 months. (v) to issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay arrears of salary & pensionary benefits calculated in terms of the Sixth Pay Commission Recommendation, including enhanced gratuity of Rs. 10 lacs, alongwith payment of interest at the prevailing Bank rates, within a period of 2 months. (vi) to issue an ad-interim mandamus to the respondent authorities to pay the current pension of the petitioners in terms of Sixth Pay Commission Recommendation. (vii)............ (viii)............ 3. Writ Petition No. 10355 (S/B) of 2017 has been filed with the following prayers; (a) Issue a writ of Certiorari or a writ, order or direction in the nature of Certiorari quashing the impugned order dated 5.5.2015 passed by the State Governmentand the consequential order dated 13.5.2015 passed by the Housing Commissioner, Parishad as contained in annexure No. 1 and 2 to the writ petitioner. (b) issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the respondents not to give effect to the impugned order dated 5.5.2015 passed by the State Government and the consequential order dated 13.5.2015 passed by the Housing Commissioner, Parishad as contained in annexure 1 and 2 to the writ petition. (c) issue a writ of mandamus or a writ, order or direction implement the Family Pension and Gratuity Scheme in accordance with the notification dated 19.5.2009 issued by the Awas evam Vikas Parishad contained in Annexure No. 5 to the writ petition and to give the benefit thereof to the petitioners in deference to the judgment and order dated 23.9.2014 passed by the Hon’ble Apex Court in Civil Appeal No. 6307 of 2010 (d)............... (e).......... 4. Section 95 of the Adhiniyam contemplates framing of regulations by the Board to regulate specified functions including conditions of service of officers and servants of the Board. Relevant extract of Section 95 of the Adhiniyam, on reproduction, reads as under: “95. Power to make regulations—(1) The Board may, by notifiction in the Gazette, make regulations providing for- ......... (f) the conditions of service of officers and servent of the Board; ...... (i) the authority on which moneys may be paid from the Board’s fund; ...... (n) any other matter which is to be or may be provided for by regulations under this Act or the rules. 5. (f) the conditions of service of officers and servent of the Board; ...... (i) the authority on which moneys may be paid from the Board’s fund; ...... (n) any other matter which is to be or may be provided for by regulations under this Act or the rules. 5. On 21.2.1995, the Board of Parishad passed a resolution for change of policy from Contributory Provident Fund to Pension/Family Pension and Gratuity Scheme. This resolution was forwarded to the State Government for its approval. By the order issued on 16.5.1996, the State Government granted no objection to the Scheme. It was, however, clarified by the State while granting no objection that financial assistance will not be provided to the Parishad by the State Government. On the basis of State’s no objection, the Parishad asked its employees for option to opt under the Pension Scheme. Being beneficial in nature, the employees of the Parishad voluntarily extended option for the Pension Scheme. A decision thereafter was taken by the State on 30th September, 1997, stating that provisions of Employees Provident Fund and Miscellaneous Provisions Act, 1952, would not be applicable upon the employees of the Parishad and the Parishad has full powers to frame its own regulations regarding payment of pension for the employees. The Parishad accordingly framed Pension/Family Pension/Gratuity Regulations for its employees in the meeting of the Parishad held on 5.11.1997. It is at this stage that an issue was raised regarding implementation of New Pension Regulations on the ground that approval was not taken from the Bureau of Public Enterprises and the implementation of Scheme was stalled and the matter was referred to the Cabinet for a decision. A Committee was constituted by the Cabinet on 17.6.1998, which resolved on 2.2.1999 that as Parishad has sufficient financial means available, as such, the New Pension Scheme could be implemented. 6. The decision of State, not to implement the provisions were ultimately lifted on 14.9.1999.By a subsequent Government Order on 7.5.2003, a condition was imposed that no financial assistance shall be provided for the Scheme by the State Government. However, such benefit was not extended to the employees apparently for the reason that benefits admissible under the pension regulations framed by the Adhiniyam was not extended to the employees of other Public Sector Undertakings, and consequently the grant of benefit was again withheld by the Government Order dated 13.9.2005. However, such benefit was not extended to the employees apparently for the reason that benefits admissible under the pension regulations framed by the Adhiniyam was not extended to the employees of other Public Sector Undertakings, and consequently the grant of benefit was again withheld by the Government Order dated 13.9.2005. The validity of this decision was challenged in Writ Petition No. 582 (S/B) of 2000 (Preetam Singh and others v. State of U.P. and others). 7. The Division Bench of this Court examined the statutory Scheme and came to the conclusion that as no financial obligation was being imposed upon the State on account of the pension regulation framed by the Parishad, as such, the State Government was not justified in stalling benefit of the Pension Scheme framed by the Parishad. The writ petition No. 582 (S/B) of 2000 was allowed on 16.1.2009, the operative portion of which, on reproduction, reads as under : “Thus the reference of scheme for its approval to the Government and the decision of the Government was a futile exercise and without any authority of law, resulting in the unnecessary interference with the independent functioning of the Parishad as the Parishad is a body constituted under the U.P. Avas Evam Vikas Parishad Adhiniyam 1965. For foregoing reasons, the writ petition succeeds and is hereby allowed. The impugned orders dated 13.9.2005, copy of which is Annexure-14 and the order dated 12.7.2007, copy of which is Annexure-18 on the record, are hereby quashed, so far as they relate to U.P. Avas Evam Vikas Parishad. A writ in the nature of mandamus is issued directing the U.P. Avas Evam Vikas Parishad to implement its pension/family pension and gratuity scheme in accordance with its regulations framed on 5.11.1997. Under the circumstances, there shall be no order as to costs.” 8. A writ in the nature of mandamus is issued directing the U.P. Avas Evam Vikas Parishad to implement its pension/family pension and gratuity scheme in accordance with its regulations framed on 5.11.1997. Under the circumstances, there shall be no order as to costs.” 8. In compliance of the Division Bench judgment dated 16.1.2009, the Parishad issued a notification dated 19th May 2009, enforcing its pension and gratuity Scheme which is extracted hereinafter : “U.P. AVAS EVAM VIKAS PARISHAD, LUCKNOW [LEKHA ANUBHAG] No. 889/Pension NOTIFICATION U.P. Avas Evam Vikas Parishad Employees Pension/Family Pension and Gratuity Regulation Where as the Hon’ble High Court of Judicature at Allahabd, Lucknow Bench, Lucknow has passed an order on January 16, 2009 in writ petition No. 582(SB)/2000 directing the U.P. Avas Evas Vikas Parishad to implement the Pension/Family Pension and Gratuity in accordance with its Regulation passed on dated November, 5, 1997 Now therefore, the U.P. Avas Evas 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 1966) 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 in U.P. AS amended 2.Uttar Pradesh Liberalized Pension Rules, 1961 do 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 as related to pension/family pension/Gratuity. do 6. Newly defined Contributory Pension rules according to notification No. Sa-3-379/Das-2005-301(9)/2003, dated March 28, 2005 applicable to officers and employees of State Government, who joined services on April 01, 2005 or onwards. do The orders with respect to the Pension/Family Pension/Gratuiry issued time to time by the State Government shall also be applicable to the officers and employees of U.P. Avas Evam Vikas Parishad. It has also been decided by the Parishad that General Provident Funds Rules, 1985, shall be applicable to the officer and employees of U.P. Avas Evas Vikas Parishad instead of Contributory Provident Fund (CPF) Regulations, 1973. It has also been decided by the Parishad that General Provident Funds Rules, 1985, shall be applicable to the officer and employees of U.P. Avas Evas Vikas Parishad instead of Contributory Provident Fund (CPF) Regulations, 1973. In GPF Rules and Government Rules/Orders issued in this regard, ‘Government’ means the U.P. Avas Evam Vikas Parishad’, ‘Accountant General’ means ‘Finance Controller of U.P. Avas Evam Vikas Parishad’ &’ Head of Department’ means ‘Housing Commissioner’. The State Government shall not provide any financial assistance for the implementation of the said Pension Scheme. Contents of the notification shall come into force w.e.f. January 1, 1996 and such officers and employees of U.P. Avas Evam Vikas Parishad who have retired on or after the said date shall be benefited with the said decision. Newly defined Contributory Pensioni Rules notified by the State Government shall be applicable to those employees who have joined Parishad services on April 01, 2005 or onwards. DEEPAK KUMAR Housing Commissioner” 9. The State Government assailed the judgment and order dated 16.1.2009 before the Apex Court in Civil Appeal No. 6307 of 2010 and an interim protection was granted. Ultimately, Civil Appeal was dismissed on 23rd September, 2014, with the following orders : “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. 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.” 10. Consequently, Government Order has been issued on 5th May, 2015 stating that in view of the order passed by the Apex Court, the employees of the Parishad shall be extended benefit of the Pension and Gratuity Scheme w.e.f. 1.1.1996. Consequently, Government Order has been issued on 5th May, 2015 stating that in view of the order passed by the Apex Court, the employees of the Parishad shall be extended benefit of the Pension and Gratuity Scheme w.e.f. 1.1.1996. The Parishad also issued a consequential order on 13th May, 2015, relevant portions whereof reads as under: 'kklu }kjk fy;s x;s mijksDrkuqlkj ikfjr vkns'kksa ds vuqikyu esa ifj"kn ds funsZ'kd e.My dh 233oha cSBd esa en la[;k&15 ij vuqeksfnr izLrkokuqlkj ekuuh; mPPkre U;k;ky; ds vkns'k fnukad 23-09-2014 ,oa rnØe esa fuxZr mDr 'kklukns'k fnukad 06-05-2015 ds vuqikyu esa rFkk ifj"kn ds uksfVfQds'ku la[;k&889@isa'ku@fnukad 19-05-2009 ds vuq:i ifj"kn ds ,sls dkfeZd tks fnukad 01-01-1996 vFkok mlds i'pkr lsokfuo`Rr gq, gks vFkok lsokfuo`RRk gksus okys gks rFkk ftudh HkrhZ fnukad 31-03-2005 vFkok mlds iwoZ gqbZ gks] dks le; ij jkT; ljdkj ds dfeZdksa ds fy, fuxZr 'kklukns'kksa ds vURkXkZr iqujhf{kr iape ,oa NBs osru lajpuk ds v/khu fu;ekuqlkj ifj"kn dfeZdksa dks isa'ku ,oa xszP;wVh ls lUcfU/kr isa'kujh csuhfQV ¼jkf'kdj.k dks NksM+dj½ voeqDr fd;s tkus ds ,rn~}kjk vkns'k fn;s tkrs gSA mijksDr ds vfrfjDRk ifj"kn dfeZdksa gsrq osru lajpuk lEcU/kh le; ij tkjh 'kklukns'kksa@ifj"knkns'kksa dks isa'kujh csuhfQV~l vuqeU; fd;s tkus gsrq laKku esa fy;k tk;sxkA mijksDr ds Øe esa ifj"kn ds leLr dk;kZy;k/;{kksa dks vknsf'kr fd;k tkrk gS fd ifj"kn dfeZdksa ds lsouSo`fRRkd leLr Dyse izi= muds lsokfuo`RRk gksus ds N% ekg iwoZ@e`R;q dh n'kk esa ,d ekg ds vUnj vfuok;Zrk isa'ku vuqHkkx eq[;ky; dks izsf"kr djuk lqfuf'pr djsaA mijksDr vkns'k ekuuh; loksZPPk U;k;ky; }kjk fu.khZr flfoy vihy la[;k&6307@2010 ds fu.kZ; fnukad 23-09-2014 ,oa rn~Øe esa fuxZr 'kklukns'k fnukad 05-05-2015 rFkk rnØe esa ifj"kn ds ekuuh; funsZ'kd e.My dh 233oha cSBd fnukad 12-05-2015 esa fy;s x;s fu.kZ; ds vuqikyu esa tkjh fd;s tk jgs gSA 11. Heard Sri Upendra Nath Misra, learned counsel for the petitioners, Sri Ramesh Pandey, learned Chief Standing Counsel for opposite party No. 1 and Sri Puneet Chandra, learned counsel for opposite parties No. 2 and 3 in Writ Petition No. 12645 (S/B) of 2016 and Sri Prashant Chandra, Senior Advocate assisted by Ms. Nandita Bharti appearing for petitioners, Sri Ramesh Pandey, learned Chief Standing Counsel for opposite party No. 1and Sri Puneet Chandra, learned counsel for opposite parties No. 2 and 3 in Writ Petition No. 10355 (S/B) of 2017. 12. Nandita Bharti appearing for petitioners, Sri Ramesh Pandey, learned Chief Standing Counsel for opposite party No. 1and Sri Puneet Chandra, learned counsel for opposite parties No. 2 and 3 in Writ Petition No. 10355 (S/B) of 2017. 12. Learned counsel for the petitioners submitted that not determining/fixing their pensionary benefits on the basis of Sixth Pay Commission Recommendations w.e.f. 1.1.2006, though the same has been done in several other statutory Corporations & Public Undertakings, is grossly, discriminatory and arbitrary in nature. Further submission is that the Clause 1 of the G.O. dated 19.5.2009, which contains Pension Regulations applicable on the employees and officers of the Parishad, specifically provides that all the Government Orders, which are issued by the State Government from time to time for the purposes of Pension/Family Pension/Gratuity of the Government Servants, shall have automatic application on the employees and officers of the Parishad and therefore, it is a ‘’legislation by reference’ and therefore, application of the Government Orders pertaining to pensionary benefits of the Government Servants cannot be restrained on the employees and officers of the Parishad. Therefore, non application of the G.O. dated 8.12.2008 on the petitioners on the basis of payment of arrears of revised pensionary benefits under Sixth Pay Commission Recommendations w.e.f. 1.1.2006 till date is absolutely arbitrary, unreasonable and unlawful and is violative of Articles 14 & 16 of the Constitution of India. 13. It has further been submitted that a Government Order cannot substitute/supplant a statutory Pension Regulation framed under Section 95 of the Adhiniyam, which was notified vide G.O. dated 19.5.2009 as the provisions made thereunder are statutory in nature and the said provisions cannot be ignored/diluted/substituted/supplanted by any other policy decision of the State Government/executive instruction in a Government Order. Clause 1 of the Pension Regulations dated 19.5.2009 clearly provides for automatic application of all Government Orders pertaining to pensionary benefits of Government Servants on all the employees and officers of the Parishad, as such, the provision contained in G.O. dated 8.12.2008 are not applicable. 14. Clause 1 of the Pension Regulations dated 19.5.2009 clearly provides for automatic application of all Government Orders pertaining to pensionary benefits of Government Servants on all the employees and officers of the Parishad, as such, the provision contained in G.O. dated 8.12.2008 are not applicable. 14. Further submission of learned counsel for the petitioners is that while dismissing the Civil Appeal of the State Government filed against the judgment and order dated 16.1.2009 passed by this Court, the Apex Court categorically directed to the respondent authorities to release the pensionary benefits to the retired employees and officers of the Parishad as per Notification dated 19.5.2009, therefore, the respondent authorities were duty bound to have strictly complied the same. Accordingly, the compliance order dated 5.5.2015 issued by the State Government and order dated 13.5.2015 issued by the Housing Commissioner providing that those employees who have retired on or after 1.1.1996 but were appointed on or before 31.3.2005 shall be given benefit of pension in terms of the Government Orders is under the teeth of the orders of the Hon’ble Apex Court. It has further been submitted that despite issuance of the Office Memorandum dated 13.5.2015 benefit of the G.O. dated 8.12.2008 has not been given and the pensionary benefits have been allowed on the basis of the Fifth Pay Commission Recommendations but not as per Sixth Pay Commission Recommendations. Similarly the maximum gratuity amount paid to the petitioners was only Rs. 3.5 lac, though the same was enhanced upto Rs. 10 Lac as per G.O. dated 8.12.2008. It has further been submitted that the respondent authorities followed the policy of “pick and choose” selectively for applying the recommendations of Sixth Pay Commission for re-determination of pensionary benefits of the employees and officers of some of the Government Corporation/Public Undertakings and not providing the benefit to others like the petitioner who were employees of the Parishad. 15. On the basis of the aforesaid submissions, learned counsel for the petitioners submitted that not providing the pensionary benefits to the petitioners in accordance with the Sixth Pay Commission Recommendation is violative of the provisions of Constitution of India and is contumacious also as it is against the judgment passed by the Hon’ble Apex Court. 16. 15. On the basis of the aforesaid submissions, learned counsel for the petitioners submitted that not providing the pensionary benefits to the petitioners in accordance with the Sixth Pay Commission Recommendation is violative of the provisions of Constitution of India and is contumacious also as it is against the judgment passed by the Hon’ble Apex Court. 16. Learned Chief Standing Counsel for the opposite parties vehemently opposed the submissions of the learned counsel for the petitioners and contested the claim of the petitioners relying upon the G.O. dated 8.12.2008. 16. Learned Chief Standing Counsel for the opposite parties vehemently opposed the submissions of the learned counsel for the petitioners and contested the claim of the petitioners relying upon the G.O. dated 8.12.2008. Relevant paragraphs 1, 2, 4 and 5(i) thereof are extracted hereinafter: 1- mijksDr fo"k; ij v/kksgLrk{kjh dks ;g dgus dk funsZ'k gqvk gS fd jkT;iky egksn; us osru lfefr mRRkj izns'k] 2008 dh laLrqfr;ksa dks Lohdkj djrs gq, jkT; ljdkj ds flfoy isa'kujksa@ikfjokfjd isa'kujksa ds isa'ku@ikfjokfjd isa'ku@xszP;qVh ,oa isa'ku jkf'kdj.k dh njksa dks fuEu izdkj la'kksf/kr fd, tkus ds vkns'k fn, gSA ;g vkns'k fnukad 01-01-2006 ls izHkkoh le>s tk;saxs rFkk fu/kkZfjr izfØ;k ds vuqlkj iqufuZ/kkj.k@lek;kstu fd;k tk;sxkA 2- ;g vkns'k jkT; ljdkj ds lHkh flfoy isa'kujksa@ikfjokfjd isa'kujksa ij ¼tks mRRkj izns'k fYkCyjkbTM isa'ku :Yl 1961] mRRkj izns'k fjVk;jesUV csuhfQV] :Yl 1961] ubZ ikfjokfjd isa'ku ;kstuk 1965 rFkk 'kklukns'k la[;k&lk&3&969@nl&933@85] fnukad 08-08-1986 ds vUrxZr Lohd`r isa'ku@ikfjokfjd isa'ku izkIr dj jgs gS½ ykxw le>s tk;saxsA ;g vkns'k v'kDRkrk isa'ku rFkk vlk/kkj.k isa'ku fu;ekoyh ¼xSj ljdkjh O;fDr;ksa dh vlk/kkj.k isa'ku dks NksM+dj½ ds vUrxZr isa'ku ikus okys isa'kujksa ij Hkh ykxw le>s tk;saxsA fdUrq ;g vkns'k mPPk U;k;ky; ds U;k;k/kh'kksa] yksd lsok vk;ksx ds v/;{k rFkk lnL;ksa] f'k{kk foHkkx ds xSj ljdkjh lsodksa] LFkkuh; fudk;ksa rFkk lkoZtfud miØeksa vkfn ds lsodksa ij ykxw ugha gksaxsA 4- isa'ku isa’ku dh x.kuk iwoZ dh Hkkafr] vkSlr ifjyfC/k;ksa ij fn;s tkus ds lkFk&lkFk lsokfuo`fRRk ds le; ds osrueku esa iquZLFkkfir is cSaM ds U;wure rFkk is xszM ds ;ksx ds 50 izfr'kr ds vk/kkj ij Hkh dh tk;sxh vkSj tks Hkh vf/kd ykHkizn gks og vuqeU; gksxk ijUrq U;wure isa'ku dh /kujkf'k :i;s 3500@& izfrekg ds de rFkk vf/kdre /kujkf'k jkT; ljdkj ds vfèkdre osru ¼fnukad 01-01-2006½ ds 50 izfr'kr ls vf/kd ugha gksxhA rn~uqlkj jkT; ljdkj dh isa'ku dh iwoZ O;oLFkk mDr lhek rd la'kksf/kr le>h tk;sxhA 5- xszP;qVh %& ¼1½ lHkh izdkj dh xzsP;qVh dh vfèkdre lhek :i;k 10 yk[k gksxhA bl izdkj ls mRRkj izns'k fjVk;jesUV csuhfQV :Yl 1961 dks lacaf/kr fu;e dks fnukad 01-01-2006 ls la'kksf/kr le>k tk,xk rFkk fu;e ds v/khu lsokfuo`fRRkd@e`R;q xszP;qVh dh vf/kdre lhek :i;s 10 yk[k ls vf/kd ugha gksxhA 17. By a separate order No. 1515 of the same date i.e. 8th December, 2008, a separate criteria for determination of pension was laid down in respect of the Government employees, who have retired before 1.1.2006. 18. By a separate order No. 1515 of the same date i.e. 8th December, 2008, a separate criteria for determination of pension was laid down in respect of the Government employees, who have retired before 1.1.2006. 18. It has further been submitted that for grant of benefit of Sixth Pay Commission Recommendations report of the Bureau of Public Enterprises/Government Corporations the criterion is distinct from what is admissible to the State Government employees vide G.O. dated 16.10.2009. The benefit of the revised pay-scale was granted w.e.f. 1.1.2006 notionally and its actual benefit was extended w.e.f. 14th January 2010. vide Government Order dated 11th October, 2010 the State Government has enforced the Government Order dated 16.10.2009 and 14.1.2010 upon the employees of the Parishad. It has been clearly provided that the arrears of salary is not payable from 1.1.2006 to 13.1.2010. The subsequent Government Order dated 15th September, 2011 also reiterates the same position. A Government Order dated 26th July, 2015 also records that there is no provision for grant of benefit of arrears under the Government Order dated 16.10.2009. On the basis of above, it has been submitted that the writ petition is liable to be dismissed. 19. The Parishad has also filed a counter-affidavit and has adopted the stand of the State. In sum and substance, the Parishad also states that it is a public enterprise, and consequently, Government Orders issued by the Bureau of Public Enterprises are applicable upon it, and therefore, the Government Orders dated 16th October, 2009 and 14th January 2010, as followed in subsequent Government Orders, would be binding upon it and that petitioners would not be entitled to the reliefs prayed for. Accordingly, the writ petitions are liable to be dismissed. 20. We have heard learned counsel for the parties at length and perused the records. 21. We find that much of the arguments advanced by the respondents to resist petitioners’ claim, is left no longer res-integra and stands answered by the Apex Court itself in State of U.P. v. Preetam Singh and others. Entitlement of the employees of Parishad to be granted pension and gratuity benefits under the regulations of 2009 viz-a-viz, the Government Orders issued by the Bureau of Public Enterprises has been specifically dealt with. It would be appropriate to reproduce the relevant discussion in that regard. Entitlement of the employees of Parishad to be granted pension and gratuity benefits under the regulations of 2009 viz-a-viz, the Government Orders issued by the Bureau of Public Enterprises has been specifically dealt with. It would be appropriate to reproduce the relevant discussion in that regard. Paras 10, 11 and 12 of the judgment which deals with the issue is reproduced : “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 in U.P. AS amended 2. Uttar Pradesh Liberalized Pension Rules, 1961 do 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 as related to pension/family pension/Gratuity. do 6. Newly defined Contributory Pension rules according to notification No. Sa-3-379/Das-2005-301(9)/2003, dated March 28, 2005 applicable to officers and employees of State Government, who joined services on April 01, 2005 or onwards. U.P. Retirement Benefit Rules, 1961 do 4. New Family Pension Scheme, 1965 do 5. All orders of finance department of U.P. Government as related to pension/family pension/Gratuity. do 6. Newly defined Contributory Pension rules according to notification No. Sa-3-379/Das-2005-301(9)/2003, dated March 28, 2005 applicable to officers and employees of State Government, who joined services on April 01, 2005 or onwards. do The orders with respect to the Pension/Family Pension/Gratuity issued time to time by the State Government 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.” 22. In view of specific pronouncement of law on the point it is apparent that Government Orders issued by the Bureau of Public Enterprises exercising powers under the U.P. State Control over Public Corporations Act, 1975, could not be made applicable in the matter of grant of pension/family pension and gratuity for the employees of Parishad, as the scope of power under 1975 Act is confined to issuance of directions in respect of policy having a nexus to the discharge of its functions and in view of Section 15 of Adhiniyam, 1965, conditions of service of employees do not constitute the functions of the Parishad. Once that be so, the policy or guidelines issued by Bureau of Public Enterprises contained in Government Orders dated 16.10.2009 and 14.1.2010 would have no applicability in the matter of laying conditions of service. All subsequent Government Orders in that line are also found not to be applicable upon the employees of the Parishad on the same analogy. 23. So far as objection by the State that grant of such benefit to the employees of Parishad would involve financial obligation upon the State is concerned, this plea also stands repelled by the Apex Court in Para 13 of the judgment, which is extracted hereinafter : “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. 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. (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.” 24. Considering the submissions of the parties, we are of the considered opinion that statutory regulations for the employees of the Parishad have been notified on 19th May, 2009, by virtue of which, employees of the Parishad are held entitled to payment of pension/family pension and gratuity as is admissible to the officers and employees of the State Government which has not been disputed also. The relevant Government Orders, as well as statutory scheme i.e. U.P. Civil Services Regulation, Pensions Rules, U.P. Retirement Benefit Rules, 1961, New Family Pension Scheme, 1965 and all orders of Finance Department in relation to pension/family pension/gratuity as are applicable to the employees of the State Government stands incorporated by reference. The relevant Government Orders, as well as statutory scheme i.e. U.P. Civil Services Regulation, Pensions Rules, U.P. Retirement Benefit Rules, 1961, New Family Pension Scheme, 1965 and all orders of Finance Department in relation to pension/family pension/gratuity as are applicable to the employees of the State Government stands incorporated by reference. The newly defined Contributory Pension Rules, insofar as it applies to the employees of the State Government who have joined service after 1st April, 2005 are also incorporated by reference under the Adhiniyam, 1965. Except for the Government Order No. 1508 dated 8th December, 2008, there is no other Government Order regulating grant of financial benefits under the Sixth Pay Commission Report or payment of pension and gratuity to the employees of the State Government. This Government Order, therefore, would apply in its entirety to the employees of the Parishad by virtue of statutory Regulations of 2009. The exclusionary part under the Government Order dated 8th December, 2008 insofar as it exempts its applicability upon the employees of Public Enterprises and local bodies, would have to be read down and held to be inapplicable, so far as employees of the public corporations are concerned. This construction would be obvious in as much as the employees of Parishad would have to be treated at par with the employees of the State Government and the Government Orders issued for the employees of Government Corporations etc by bureau of Public Enterprises would have no applicability. 25. The Hon’ble Apex Court has held in Confederation of ex-servicemen v. UOI; (2006)8 SCC 399 , that Article 14 guarantees equality before the law and confers equal protection of laws. It clearly prohibits the State from denying persons or class of persons equal treatment provided they are equals and are similarly situated. The Hon’ble Apex Court, in paragraph 30 of the said judgment has provided that every classification to be legal, valid and permissible, must fulfill the twin test, namely, (i) the classification must be founded on an intelligible differentia which must distinguish persons or things that are grouped together from others leaving out or left out; and (ii) such a differential must have rational nexus to the object sought to be achieved by the statute or legislation in question. 26. 26. Similarly in the case of FCI v. Ashis Kumar Ganguly and others; (2009) 7 SCC 734 , the Hon’ble Apex Court in paragraph 29 has held as under: “29. A statutory authority or an administrative authority must exercise its jurisdiction one way or the other so as to enable the employees to take recourse to such remedies as are available to them in law, if they are aggrieved thereby. The question which, however arises for consideration is as to whether having exercised its jurisdiction in favour of a class of employees, a statutory authority can deny a similar relief to another class of employees. IN a case of this nature, in our opinion, the writ Court was entitled to declare such a stand taken by the statutory authority as discriminatory on arriving at a finding that both the classes are entitled to the benefit of a statutory rule.” 27. It is clear that the Government order cannot supercede provisions of act or statutory Rules. Our view is also fortified by the judgment of the Hon’ble Apex Court in Union of India v. Charanjeet S. Gill; (2000) 5 SCC 742 and Public Service Commission, Uttaranchal v. JCS Bora; (2014) 8 SCC 644 , the relevant portion of which, on reproduction, reads as under: “28.............It is settled proposition of law that the executive orders cannot supplant the Rules framed under the proviso to Article 309 of the Constitution of India. Such executive orders/instructions can only supplement the Rules framed under the proviso to Article 309 of the Constitution of India.” 28. In view of the provisions contained in the statutory regulations notified on 19.5.2009 applicability of Government Orders issued under the direction of the Bureau of public enterprises stands excluded and any contrary interpretation would be clearly in teeth not only the statutory Regulations of 2009, but would be inconsistent with the judgement of the Apex Court in State of U.P. v. Preetam Singh and others. 29. The Apex Court also considered the competence of the Awas Vikas Parishad to frame regulations whereby it could extend the Pension/Family Pension and Gratuity Scheme to its employees and held its competence in paragraph 14 of judgment rendered in State of U.P. v. Preetam Singh and others, which is reproduced hereunder: “14. 29. The Apex Court also considered the competence of the Awas Vikas Parishad to frame regulations whereby it could extend the Pension/Family Pension and Gratuity Scheme to its employees and held its competence in paragraph 14 of judgment rendered in State of U.P. v. Preetam Singh and others, which is reproduced hereunder: “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.” 30. The Apex Court also considered the consequence of approaching to the Apex Court in the case of State of U.P. v. Preetam Singh and others, and consequences thereof, on reproduction, which reads as under: “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 stayiing 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 will be entitled to pensionary 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 pensionary benefits to the retired employees governed by the notification dated 19.5.2009 within three months from today. While determining the pensionary benefits payable to the eligible retired employees upto 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. While determining the pensionary benefits payable to the eligible retired employees upto 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.” 31. In this regard the observation of the Hon’ble Apex Court in the case of S R Bhagwat v. State of Mysore, (1995) 6 SCC 16 , is relevant and the relevant paragraph 15 of which is reproduced as under: “15. We may note at the very outset that in the present case the High Court had not struck down any legislation which was sought to be re-enacted after removing any defect retrospectively by the impugned provisions. This is a case where on interpretation of existing law, the High Court had given certain benefits to the petitioners. That order of mandamus was sought to be nullified by the enactment of the impugned provisions in a new statute. This in our view would be clearly impermissible legislative exercise.” 32. Similar view has been taken by the Hon’ble Apex Court in the case of Commr. Karnataka Housing Board v. C. Muddiah; (2007) 7 SCC 689 . The relevant paragraph 32, on reproduction, reads as under: “32. We are of the considered opinion that that once a direction is issued by a competent Court, it has to be obeyed and implemented without any reservation. If an order passed by a Court of law is not complied with or is ignored, there will be an end of the rule of law. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the Court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected. 33. Even after the stringent view taken by the Apex Court in regard to the interference of the State Government in the functioning of the Awas Vikas Parishad without authority of law and approaching to the Apex Court, the State Government issued a Government Order dated 5.5.2015 granting benefit of Regulation of 2009 to the employees of Parishad functioning w.e.f. 1.1.1996, under the teeth of the orders of the Apex Court and without authority of law. While it should have directed to the Awas Vikas Parishad to comply the order passed by the Apex Court in it’s true letter and spirit. 34. Even otherwise, Clause (1) of the statutory regulations dated 19.5.2009 is a clear illustration of legislation by reference,in as much as Government Orders, which are issued from time to time, for the purposes of pension/family pension/gratuity for the Government Servants shall be a part of the statutory regulations. Observation of the Hon’ble Apex Court in para 86 and 87 in Girnar Traders v. State of Maharashtra, (2011) 3 SCC 1 , is apposite and is reproduced as under : “86. At the very outset, we may notice that in the preceding paragraphs of the judgment, we have specifically held that MRTP Act is a self-contained code. Once such finding is recorded, application of either of the doctrines, i.e. `legislation by reference’ or legislation by incorporation’, would lose their significance particularly when the two Acts can co-exist and operate without conflict. 87. However, since this aspect was argued by the learned counsel appearing for the parties at great length, we will proceed to discuss the merit or otherwise of this contention without prejudice to the above findings and as an alternative plea. These principles have been applied by the Courts for a considerable period now. 87. However, since this aspect was argued by the learned counsel appearing for the parties at great length, we will proceed to discuss the merit or otherwise of this contention without prejudice to the above findings and as an alternative plea. These principles have been applied by the Courts for a considerable period now. When there is general reference in the Act in question to some earlier Act but there is no specific mention of the provisions of the former Act, then it is clearly considered as legislation by reference. In the case of legislation by reference, the amending laws of the former Act would normally become applicable to the later Act; but, when the provisions of an Act are specifically referred and incorporated in the later statute, then those provisions alone are applicable and the amending provisions of the former Act would not become part of the later Act. This principle is generally called legislation by incorporation. General reference, ordinarily, will imply exclusion of specific reference and this is precisely the fine line of distinction between these two doctrines. Both are referential legislations, one merely by way of reference and the other by incorporation. It, normally, will depend on the language used in the later law and other relevant considerations. While the principle of legislation by incorporation has well defined exceptions, the law enunciated as of now provides for no exceptions to the principle of legislation by reference. Furthermore, despite strict application of doctrine of incorporation, it may still not operate in certain legislations and such legislation may fall within one of the stated exceptions.” 35. In this regard the Hon’ble Apex Court in paragraph 12 of the Government of T.N. v. S. Balasubramanian; (1999) 6 SCC 642, has held as under: “12.We may in the context point out that in law a distinction is drawn between a mere reference or citation of a statute into another and incorporation of a particular provision of a statute. While in the former case a modification, repeal or re-enactment of the statute that is is referred will also have effect for the statute in which it is referred, but in the latter case any change in the incorporated statute by way of amendment or repeal has no repercussion on the incorporating statute.” 36. While in the former case a modification, repeal or re-enactment of the statute that is is referred will also have effect for the statute in which it is referred, but in the latter case any change in the incorporated statute by way of amendment or repeal has no repercussion on the incorporating statute.” 36. Since even after taking a serious view by the Apex Court, the State Government and Awas Vikas Parishad had not taken the action as per the direction, certain employees were constrained to approach this Court by filing Writ Petition No. 9033 (S/S) of 2016 (Shivashray Rai v. State of U.P and others) in which learned Chief Standing Counsel fairly recognized the entitlement of petitioners’ to the relief claimed in view of statutory regulations as also in view of the law laid down by the Hon’ble Supreme Court. Considering the same, the writ petition was allowed with cost. The relevant paragraph 23 and 24 of which are extracted hereinunder: “23. Sri Ramesh Pandey, learned Chief Standing Counsel, during the course of argument, fairly recognized the entitlement of petitioners’ to the relief claimed in view of statutory regulations, as also in view of the law laid down by Hon’ble Supreme Court. He, however has expressed his apprehension that grant of benefit to the employees could be cited as precedent by employees of other Government Corporations to claim parity and would thereby impose huge financial obligation upon the State. The fear of State in that regard appears to be misconceived. Admittedly, the employees of other Government Corporations or public enterprises would not be entitled to claim parity with the employees of Parishad in the matter of pension/family pension/gratuity, inasmuch as the Regulations of 2009 would be restricted to the employees of the Parishad, and unless such benefit are otherwise available under the relevant statutory scheme, it cannot be claimed by the employees of other Government Corporation and Public Enterprises. Moreover, such benefit are to be extended out of the coffers of the Parishad, and no financial obligation is to be imposed upon the State Exchequer. This is also a fact which distinguishes the employees of Parishad from other employees of local bodies/Government Corporations. It is, therefore, clarified that this judgement would not be available to be cited as precedent for the purposes of grant of benefit of pension/family pension/gratuity by the employees of other Government Corporations/Public Enterprises. 24. This is also a fact which distinguishes the employees of Parishad from other employees of local bodies/Government Corporations. It is, therefore, clarified that this judgement would not be available to be cited as precedent for the purposes of grant of benefit of pension/family pension/gratuity by the employees of other Government Corporations/Public Enterprises. 24. In view of the discussions aforesaid, this petition is allowed. A mandamus is issued to the respondents to grant benefit of arrears of salary payable to the employees of Parishad w.e.f. 1.1.2006 to 13.1.2010, and to fix their pension/family pension, and also release gratuity in accordance with the provisions of U.P. Avas Evam Vikas Parishad Regulations notified on 19th May, 2009, and in light of the orders of the Hon’ble Supreme Court in Civil Appeal No. 6307 of 2010 within a period of four months from the date of presentation of certified copy of this order, failing which the petitioners shall also be entitled to interest upon such withheld amount at the rate of 8% per annum.” Even after issuing direction by the learned Single Judge, the State Government and the Awas Vikas Parishad have not taken action and complied the judgment of the Hon’ble Apex Court in its true spirit. 37. In the present case also during the course of arguments, learned Chief Standing Counsel Sri Ramesh Pandey fairly submitted that the reliefs claimed in Writ Petition No. 12645 (S/B) of 2017 are identical to the reliefs claimed in Writ Petition No. 9033 (S/S) of 2016 and the judgment passed in the said writ petition squarely covers the issue. He fairly admitted that so far as the challenge of order dated 5.5.2015 and the consequential order issued by the Housing Commissioner dated 15.2.2015 are concerned, the Government Order dated 5.5.2015 has been dis-approved by the learned Single Judge by observing that the stand taken by the State Government is clearly inconsistent with the law laid down by the Hon’ble Supreme Court in the case of State of U.P. v. Preetam Singh and others. Regarding rest of the reliefs, he submitted that the petitioners may approach to the authority concerned. During the course of arguments he fairly recognized the entitlement of petitioners’ to the relief claimed in view of statutory regulations, as also in view of the law laid down by Hon’ble Supreme Court. Regarding rest of the reliefs, he submitted that the petitioners may approach to the authority concerned. During the course of arguments he fairly recognized the entitlement of petitioners’ to the relief claimed in view of statutory regulations, as also in view of the law laid down by Hon’ble Supreme Court. He, however has expressed his apprehension that grant of benefit to the employees could be cited as precedent by employees of other Government Corporations to claim parity and would thereby impose huge financial obligation upon the State. The fear of State in that regard appears to be misconceived. Admittedly, the employees of other Government Corporations or public enterprises would not be entitled to claim parity with the employees of Parishad in the matter of pension/family pension/gratuity, in as much as the Regulations of 2009 would be restricted to the employees of the Parishad, unless such benefits are otherwise available under the relevant statutory scheme, it cannot be claimed by the employees of other Government Corporation and Public Enterprises. Moreover, such benefit are to be extended out of the coffers of the Parishad, and no financial obligation is to be imposed upon the State Exchequer. This is also a fact which distinguishes the employees of Parishad from other employees of local bodies/Government Corporations. 38. In this regard the observation of the Hon’ble Apex Court in the case of MMR Khan v. UOI, (1990) SCC 191, is relevant and the relevant portion of paragraph 30 of which is reproduced as under: “30........................................If by virtue of all these facts they are entitled to the status of railway employees and they cannot be deprived of that status merely because some other employees similarly or dissimilarly situated may also claim the same status. The argument to say the least can only be described as one in terrorem and as any other argument of the kind has to be disregarded..” 39. The argument to say the least can only be described as one in terrorem and as any other argument of the kind has to be disregarded..” 39. Similarly in the case of Indian Overseas Bank v. IOB staff Canteen worker’s association, (2000) 4 SCC 245 , the Hon’ble Apex Court has held as under: 15...........An apprehension has also been expressed while submitting that if the claim the canteen workers in this case is upheld, the appellant Bank would have to face similar claims made by every employee of the canteen run everywhere and even subsequently by various contractors, for the similar reason that the Bank had provided subsidy either in cash or kind or in both to facilitate the running of a staff canteen. We may point out even at this state that this type of submission based on apprehensions came to be rejected even in M.M.R. Khan case as an argument in terrorem and that if really the workers are entitled to the status they are claiming, they cannot be deprived of such status merely because some other employees similarly or dissimilarly situated may also claim the same status” 40. In view of the aforesaid discussion and from the facts narrated above, it is imminently clear that the act of the respondents in denying the legitimate claim is contumacious in nature, which has caused serious prejudice to the retired employees, who have been denied their benefits/dues without there being any legally justifiable reason. It has been informed at the bar that some of the employees have left for heavenly abode during the litigation and could not enjoy the fruits in their life time. Considering a holistic approach of the matter, we are of the view that the writ petitions are liable to be allowed and it is a fit case where cost is to be imposed so that the State Authorities must be cautious in future from issuing any Government Order which is in direct conflict with the statutory provisions or verdict of the Apex Court/other Courts. 41. 41. Accordingly, both the writ petitions are allowed and the impugned orders dated 5.5.2015 and 13.5.2015 contained in Annexure No. 1 and 2 to the Writ Petition No. 126345 (S/B) of 2017 are quashed to the extent they are contrary to the judgment passed by the Hon’ble Apex Court in the case of State of U.P. v. Preetam Singh and others : Civil Appeal No. 6307 of 2010.A mandamus is issued to the respondents to grant benefit of arrears of salary payable to the employees of Parishad w.e.f. 1.1.2006 to 13.1.2010,and to fix their pension/family pension and also release gratuity in accordance with the provisions of U.P. Avas Evam Vikas Parishad Regulations notified on 19th May, 2009, and in the light of the orders of the Hon’ble Supreme Court in Civil Appeal No. 6307 of 2010 from the date of their entitlement alongwith interest @ 9% per annum within a period of two months from the date of production of certified copy of this order, failing which the petitioners shall be entitled and paid interest at the rate of 12% per annum. 42. Cost of Rs. 1,00,000/- (Rs. One Lac) shall be paid by the State Government,i.e., opposite party No. 1 within two months in the account of Uttar Pradesh Rani Lakshmi Bai Mahila Samman Kosh, which has been notified as Juvenile Justice Fund w.e.f. 4th January, 2017 under the Department of Women and Child Development, Government of Uttar Pradesh in pursuance to the provisions of Section 105 of Juvenile Justice (Care & Protection of Children), Act 2015 and a receipt showing that the amount has actually been transmitted to the aforesaid account shall be submitted to this Court within two months. It is further provided that the amount of the said cost shall be utilized for the Welfare of poor children.