Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 1932 (ALL)

Ram Kishore Awasthi v. State of Uttar Pradesh

2024-08-27

J.J.MUNIR

body2024
JUDGMENT : J.J. Munir, J. 1. Can there be a government servant appointed in accordance with rules against a sanctioned post, but remunerated otherwise than by a monthly salary, say a commission on the revenues that he collects for the Government? The further question involved is: Would a Kurk Amin, part of the cadre of Kurk Amin under Rule 2(d) of the Uttar Pradesh Co-operative Collection Fund and the Amins and Other Staff Service Rules, 2002, as amended by the Third Amendment Rules, 2005, appointed on commission basis, as distinguished from salary, be entitled to pension, gratuity, leave encashment and other post retiral benefits, like the other class of Kurk Amin appointed under the same Rules, but on a salary? 2. This writ petition has been instituted by Ram Kishore Awasthi, a Kurk Amin under the Cooperative Collection Scheme working on commission basis, since retired, praying that a mandamus be issued to the respondents to pay him salary, other consequential benefits and pension in terms calculated by the Assistant Commissioner & Assistant Registrar, Cooperatives, Shahjahanpur vide calculation chart dated 13.04.2016. The petitioner prays for the issue of a further writ, order or direction in the nature of mandamus ordering the respondents to treat the petitioner as a government servant and pay him all arrears of salary, besides service benefits and post retiral dues, including pension from the Government Treasury, reckoned with effect from the date of his initial appointment. 3. The petitioner was appointed a Kurk Amin on commission basis in the Department of Cooperatives of the State Government. He was terminated from service on certain charges vide order dated 30.06.2004 passed by the District Assistant Commissioner & Assistant Registrar, Cooperatives, Shahjahanpur. The petitioner challenged the order dated 30.06.2004 before the Uttar Pradesh State Public Services Tribunal vide Claim Petition No.1613 of 2011. The claim petition was allowed by the Tribunal vide judgment and order dated 10.05.2015 and the order of his termination from service quashed. A direction was issued to reinstate the petitioner in service along with continuity and consequential benefits within a period of two months of the date of production of a certified copy of the judgment before the Disciplinary Authority. The Disciplinary Authority was, however, left free to proceed afresh against the petitioner, if he so elected, in accordance with rules. A direction was issued to reinstate the petitioner in service along with continuity and consequential benefits within a period of two months of the date of production of a certified copy of the judgment before the Disciplinary Authority. The Disciplinary Authority was, however, left free to proceed afresh against the petitioner, if he so elected, in accordance with rules. In compliance with the Tribunal's judgment, the petitioner was reinstated in service vide order dated 31.08.2015 and retired from service on 31.01.2016, upon attaining the age of superannuation. 4. There is some kind of an issue raised by the petitioner that at the time of his entry into service, his letter of appointment dated 14.04.1983 did not mention the words 'commission basis', but it was introduced at the fag-end of his tenure by the District Magistrate while he was retiring from service, vide letter dated 30.01.2016. From the totality of the material and circumstances attending the parties’ case, there is not the slightest doubt that the petitioner was indeed appointed on commission basis and not as a salaried Amin. A letter dated 21.06.2017 was addressed by the Assistant Commissioner & Assistant Registrar, Cooperatives, Shahjahanpur to the petitioner with reference to a letter dated 06.06.2017 addressed by the petitioner to the District Magistrate, informing the petitioner that he had sought the directions of the Commissioner & Registrar, Cooperatives, regarding regularization of services of Amin governed by the Uttar Pradesh Co-operative Collection Fund and the Amins and Other Staff Service Rules, 2002 (for short, 'the Rules of 2002'). 5. The petitioner further refers to a letter of the Additional Commissioner (Banking), Cooperative Societies, U.P., Lucknow, directing all District Assistant Commissioners, Cooperatives regarding the terms of appointment of Kurk Amin in Cooperative Societies, which the petitioner says, states that the appointments of Kurk Amin are regular; not on commission basis. No doubt, this letter of 26th June, 1978 says that Kurk Amin in Cooperative Societies appointed under the Cooperative Collection Scheme ought always be appointed on the basis of salary and never on commission, the fact about Kurk Amin being retained on commission basis having come to the Additional Commissioner's notice. 6. The petitioner further pleads that they are holders of a civil post and government servants within the meaning of Article 311 of the Constitution. 6. The petitioner further pleads that they are holders of a civil post and government servants within the meaning of Article 311 of the Constitution. The collection of dues of Cooperative Societies is a regular process and the post of Kurk Amin are always required. Reference in this connection is made to a letter dated 21.12.2016 from the Additional Commissioner & Additional Registrar (Banking), Cooperatives, Lucknow addressed to the Joint Secretary to the Government in the Department of Cooperatives. There is also a reference by the petitioner to a letter from the Commissioner & Registrar, Cooperatives to the Joint Secretary in the Department of Cooperatives dated 06.10.2016 regarding the issue of Kurk Amin on commission basis to be paid salaries being under the consideration of a Committee at the instance of the employees association. There is a reference to a host of judgments delivered at the instance of individual Kurk Amin or the Uttar Pradesh Sahkari Sangrah Karmchari Sangh by this Court at Lucknow and some at Allahabad, upholding the right of the Kurk Amin appointed on commission basis to be treated as government servants and paid emoluments, as the petitioner says, in terms of a salary and not commission. What these judgments hold, some of which have been appealed to the Supreme Court and decided by their Lordships as well, we would presently advert to. 7. The petitioner in substance wishes to say that by virtue of the fact that Kurk Amin, working on commission basis, are regarded as government servants, he is entitled to be remunerated by a monthly salary and granted post retiral benefits, like any other government servant, instead of being retained on a mere commission. The respondents, on the other hand, in the two personal affidavits filed by the Commissioner & Registrar, Cooperatives, Lucknow and one by the Assistant Commissioner & Assistant Registrar, Cooperatives, Shahjahanpur, deny this right for the petitioner. Their stand is that no doubt Kurk Amin on seasonal basis have a right to be absorbed against posts of salaried Amin, but the petitioner, for a fact, while in service, was never so absorbed. The Rules of 2002, as amended by the Third Amendment Rules, 2005 (for short, 'the Amended Rules of 2005') clearly envisage under the Cooperative Collection Scheme two types of Amin: (a) salaried Kurk Amin; and, (b) commission based Cooperative Kurk Amin. 8. The Rules of 2002, as amended by the Third Amendment Rules, 2005 (for short, 'the Amended Rules of 2005') clearly envisage under the Cooperative Collection Scheme two types of Amin: (a) salaried Kurk Amin; and, (b) commission based Cooperative Kurk Amin. 8. It is the respondents' case that the petitioner was appointed in the year 1983 as Cooperative Kurk Amin on commission basis and retired holding the same position on 31.01.2016. He was never appointed or absorbed as a salary based Cooperative Kurk Amin. It is also the respondents' case that Rule 2(d) of the Rules of 2002, after enforcement of the Amended Rules of 2005, include both salaried Amin and those serving on a commission basis. But, the terms of remuneration for the two are distinctly and differently envisaged under the said Rules. It is also the respondents' case that though the Cooperative Kurk Amin, working on commission basis, are to be absorbed or appointed against vacancies on salary basis, who have made satisfactory recovery during the last five years on the basis of seniority, subject to rejection of unfit and their willingness, with no fresh recruitment taking place till all commission based Amin are absorbed in terms of orders of the Supreme Court in Civil Appeal No.8467-68 of 1995, State of Uttar Pradesh and others v. Chandra Prakash Pandey and others, decided on 20.03.2001, but the petitioner was never absorved on the substantive vacancy of an Amin on salary basis till he retired from service. 9. It is pleaded in paragraph No.24 of the personal affidavit filed by the Commissioner & Registrar, Cooperatives, Lucknow that there were 206 substantive posts of Amin on salary basis at Shahjahanpur and a total of 2689 posts of Amin on commission basis, that is to say, the station where the petitioner was working, but there were a total of 3 substantive vacancy of Amin on salary basis, which remained occupied during the petitioner's service period. There was, thus, no occasion to absorb the petitioner as a salaried Amin until his retirement. 10. Parties having exchanged affidavits, this petition was admitted to hearing on 24.08.2023, which proceeded forthwith. The hearing was adjourned across a number of dates after commencement, either due to paucity of time or inability of learned Counsel to appear. It was next heard on 12.02.2024, then on 15.02.2024 and for a last on 28.02.2024, when judgment was reserved. 11. 10. Parties having exchanged affidavits, this petition was admitted to hearing on 24.08.2023, which proceeded forthwith. The hearing was adjourned across a number of dates after commencement, either due to paucity of time or inability of learned Counsel to appear. It was next heard on 12.02.2024, then on 15.02.2024 and for a last on 28.02.2024, when judgment was reserved. 11. Heard Mr. Ram Sheel Sharma, learned Counsel for the petitioner and Mr. Ajeet Kumar Singh, learned Additional Advocate General assisted by Mr. Sudhanshu Srivastava, learned Additional Chief Standing Counsel appearing for the respondents. 12. The submission of the learned Counsel for the petitioner is that the earliest of decisions on the point is a Bench decision of this Court in Ram Behari Mishra v. District Assistant Registrar, Cooperative Societies, Etawah, Writ Petition No.738 of 1980, decided on 16.11.1985, where it was held that the petitioner, who was a Kurk Amin, remunerated on commission basis, was a government servant, whose services could not be terminated, otherwise than in accordance with law, that is to say, in accordance with Article 311 of the Constitution. The said decision is an authority for the principle as to who would be regarded as a government servant and what are the tests to determine if one was holding a civil post under the State. The Division Bench in Ram Behari Mishra (supra) never had the issue before their Lordships if a Cooperative Collection Amin, because he was a civil servant, had to be remunerated by a monthly salary and not a recovery based commission. Ram Behari Mishra is, therefore, not at all relevant to the point involved here. 13. It is pointed out on behalf of the petitioner that the terms and conditions of the petitioner's service were initially governed by the Uttar Pradesh Sahkari Sangrah Kosh Niyamawali, 1982 (for short, 'the Rules of 1982'), which was later on amended on 05.04.1984. It is submitted that it was by virtue of this amendment that provision was made regarding appointment of Cooperative Kurk Amin on salary basis in all Tehsils of the State. It is submitted that it was by virtue of this amendment that provision was made regarding appointment of Cooperative Kurk Amin on salary basis in all Tehsils of the State. It is pointed out by the petitioner with reference to amended Rule 24 of the Rules of 1982 that these provide that Cooperative Kurk Amin would be appointed in the manner that Kurk Amin appointed on salary basis and those on commission basis, would be there in the ratio 1:3 (one on salary basis and three on commission basis). The said Rule was again amended introducing a pay-scale for all Amin, that is to say, Rs.354 – 550/-. The said amendment was made on 27.04.1987 to the Rules of 1982. It is emphasized that the Amendment of 1985 to the Rules of 1982 made clear provision regarding remuneration of Kurk Amin, all on salary basis, in every Tehsil of the State. These Rules were further amended vide Amendment dated 27.04.1985, providing for appointment of Cooperative Kurk Amin on salary basis for every Block of every Tehsil. The submission is that the State have failed to implement the aforesaid amendment to the Rules of 1982, appointing the requisite number of Kurk Amin on salary basis in every Tehsil and Block of the State. The figures are asserted by the petitioner to be that in the 75 districts, there are 350 Tehsils with 823 Blocks and for each of them a minimum of 1173 posts of salaried Kurk Amin would stand sanctioned, according to the Rules of 1982, as amended on 27.04.1985. 14. The learned Counsel has referred to Page 49 of the paper-book, where the report of the Committee shows that Kurk Amin working on salary basis are 116 and those on commission basis are 1552 against the sanctioned positions of 2689. The learned Counsel for the petitioner would urge that 1157 posts were available against which the petitioner ought have been appointed or absorbed on salary basis, going by the directions of the Supreme Court in Contempt Petition (Civil) No.110-111 of 2003 in Civil Appeal No.8467-8468 of 1995, decided on 05.10.2005. It is the petitioner's submission that if the petitioner were absorbed against one of the available posts on salary basis, out of the many available, he would be entitled to the benefit of pension. It is the petitioner's submission that if the petitioner were absorbed against one of the available posts on salary basis, out of the many available, he would be entitled to the benefit of pension. What this Court notices is that the petitioner was not in fact absorbed on a salary based post until his superannuation. 15. The other issue, which seems to be implicit but not pleaded to is: If during the long period of time that the petitioner was out of service on account of the order of termination that was set aside by the Tribunal, granting him continuity, any junior to the petitioner was absorbed against a salary based post? The issues here have been interwoven into some kind of a fabric with a mixed thread because of the historical origins of the issue and the way the respondents have chosen to struggle with it, contrary to the consistent effort by the Courts to rationalize anomalies. After the judgment of the Division Bench in Ram Behari Mishra, which we have shown proceeded on a very different consideration, involving a different point, but nevertheless saying that a Cooperative Kurk Amin on commission basis was a government servant, the issue about the right of such Amin to be remunerated by way of salary instead of commission, arose in Uttar Pradesh Sahkari Sangarsh Karmchari Sangh v. State of Uttar Pradesh and others, Writ Petition No. 2829 (SS) of 1992, where orders of reference to a Larger Bench were made on 22.03.1996. The question in the aforesaid case was if Kurk Amin, whether on salary basis or commission, are civil servants, entitled to consequential benefits available to a government employee. The learned Single Judge, before whom the matter came up, thought that it was not appropriate for his Lordship to decide it sitting singly, the matter having already engaged the attention of a Division Bench and referred it to the Chief Justice for being placed before a Larger Bench. The remarks of Paritosh K. Mukherjee, J. are enlightening. These read : “The matters, which have been remanded back by the apex court to this court for fresh decision, relate to Kurk Amins, appointed on commission basis. Thus, this court is called upon to decide the controversy as to whether a Kurk Amin, who is appointed on commission basis is a civil servant or not. These read : “The matters, which have been remanded back by the apex court to this court for fresh decision, relate to Kurk Amins, appointed on commission basis. Thus, this court is called upon to decide the controversy as to whether a Kurk Amin, who is appointed on commission basis is a civil servant or not. The historical background of creation of posts of 'Kurk Amin' on 'commission basis' is that in the State of Uttar Pradesh, there are huge outstanding dues against the co-operative societies. The State Government has not been able to realise those dues due to the slackness on the part of its employees, more particularly, Kurk Amins, who are appointed on 'salary basis'. It was in view of the aforesaid backdrop that it was thought prudent by the State Government to give incentive to a separate class of employee, and, it accordingly, started appointing 'Kurk Amins' on 'Commission basis', instead of appointing them on 'salary basis'. The real test to give answer as to whether such Kurk Amins, appointed on 'commission basis' are civil servants, or not, also depends on the factors, as enumerated in the case of Raman Lal (Supra), such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to prescribe the conditions of service, the nature of the duties performed by the employees, the right to control the employee's manner and method of work, the right to issue directions and the right to determine and the source from which wages or salary are paid and post of such other circumstances. It is not disputed that 'Kurk Amins' on 'commission basis' are appointed by the Collector. Their commission on collection is paid by Government. Their condition of service is prescribed by the State through the Collector. They can be terminated, at any time, in accordance with law, by the State, through the Collector. Thus, the Collector is the pivot of all duties and functions being performed by such 'Kurk Amins'. The Collector is their appointing authority, he is the disciplinary authority, he sanctions commission to them and he issues all necessary directions in regard to performance of duties by such Kurk Amins. Thus, the Collector is the pivot of all duties and functions being performed by such 'Kurk Amins'. The Collector is their appointing authority, he is the disciplinary authority, he sanctions commission to them and he issues all necessary directions in regard to performance of duties by such Kurk Amins. Thus, from the aforesaid test, it is absolutely clear that all functions, and factors, enshrined in the judgment in Raman Lal's case (supra) are present in the case of Kurk Amins, who are appointed on 'commission basis'. That being so, they cannot be deprived of their legitimate right of regularization in service, merely because they are appointed on 'commission basis'. My aforesaid view is fortified by the decision in the case of State of Assam Vs. Kanak Chand Datta (supra), wherein it has been held that the fact that a person was not a whole time employee, nor drew salary, but commission, will not alter status of his post outside regularly constituted services need not necessarily carry definite rate of pay, nor such post must necessarily be a whole time employment. In the aforesaid case, it was also held that post is employment but every employment is not post. Thus, from the aforesaid conspectus of provisions of law, as laid down by the apex court and other High Courts, from time to time, one thing is crystal clear the Kurk Amins are civil servants, irrespective of the fact, that they are appointed on 'commission basis'. Since, in my view, a Kurk Amin, appointed on 'commission basis' is a civil servant and he is holder of a civil post, the next question, which arises at this juncture is that, can a Government servant be allowed to draw salary, as well as, 'commission'. The answer is certainly in negative. A Government servant, in no circumstance, can be allowed to draw two salaries, simultaneously. As already stated in the preceding paragraphs of this judgment, for quick realization of outstanding dues, the State Government started appointing 'Kurk Amins' on 'commission basis'. If the Kurk Amins, on collection basis, are held to be holder of civil post, in my view, they are certainly entitled to pay and allowances, admissible to regularly appointed Kurk Amins on the principle of 'equal pay for equal work', as enshrined under Article 39-D of the Constitution of India (see Randhir Singh Vs. If the Kurk Amins, on collection basis, are held to be holder of civil post, in my view, they are certainly entitled to pay and allowances, admissible to regularly appointed Kurk Amins on the principle of 'equal pay for equal work', as enshrined under Article 39-D of the Constitution of India (see Randhir Singh Vs. Union of India ( AIR 1982 SC 879 ) as well as catena of decisions of Hon'ble Supreme Court, including- AIR 1986 SC 584 )). I am, therefore, of the view that all the petitioners, who are Kurk Amins on 'commission basis' are entitled to be regularised and absorbed as 'Kurk Amins' and paid salary and allowances, admissible to the post, subject to availability of posts. Those petitioners, who cannot be absorbed on account of non-availability of posts, should be kept in 'waiting list' and they should be allowed to continue as such, on commission basis, till they are absorbed in the regular cadre of Kurk Amins. Till exhaustion of the waiting list, containing the names of the petitioners and similarly circumstanced Kurk Amins, no fresh recruitment should be made. In view of what has been discussed above, I hereby refer the matter to Hon'ble the Chief Justice, or, the Hon'ble the Senior Judge, Lucknow Bench of High Court of Judicature at Allahabad, as the case may be for constituting a larger Bench as early as possible, preferably within two weeks from the date of production of this judgment/ reference.” 16. The order of the learned Single Judge, referring the matter to a Larger Bench, after expressing his opinion, was challenged in Special Appeal. 17. The next the issue arose, regarding entitlement of Cooperative Collection Amin appointed on commission basis to be treated as government servants was in the context of termination of their service. This was in Chandra Prakash Pandey and others v. State of Uttar Pradesh and others, Writ Petition No.199 (SS) of 1991, decided on 26.04.1993. The question was if Kurk Amin appointed on commission basis were holding civil posts, entitled to protection of the law governing the procedure for termination of service. The precise point involved was not about the entitlement of a Cooperative Collection Amin appointed on commission basis to receive salary, but to be treated as the holders of a civil post and government servants entitled to protection against termination of their service. The precise point involved was not about the entitlement of a Cooperative Collection Amin appointed on commission basis to receive salary, but to be treated as the holders of a civil post and government servants entitled to protection against termination of their service. For this reason, following the decision of the Division Bench in Ram Behari Mishra, the writ petition was allowed. The judgment of the learned Single Judge was appealed both by the State and the petitioners, giving rise to Special Appeal No.15 (SB) of 1994 and Special Appeal No. 39 (SB) of 1994. It appears that the State appealed the part of the judgment which held Amin appointed on commission basis to be the holders of a civil post and quashing the orders of termination from service, whereas there was a relief sought by the writ petitioners regarding fixation of their pay and arrears as well that was not granted by the Single Judge or dealt with at all, which made them appeal. D.K. Seth, J., speaking for the Bench, held : “19. Now it is said that the petitioners were appointed under the said Rules framed in 1982. If the Rules do not have any statutory force, in that event the appointments made under the said Rules become non-est. Therefore, the petitioners cannot have any right to maintain the present writ petition, was the other submission made by Mr. Verma. It appears under the said 1982 Rules which does not have any existence in the eyes of law, the Collector was made the appointing authority and the Collector had made the appointment may be under a wrong notion in exercise of powers conferred upon him under the 1982 Rules. Even apart from 1982 Rules, the Collector had the power to appoint Kurk Amins for collection of land revenue and may appoint the same for the purposes of collection of cooperative dues. Therefore, by no stretch of imagination, it can be said that the Collector had no power to appoint Kurk Amins. The Collector having power to appoint Kurk Amins, the appointment of the petitioners 1 to 4 cannot be said to be non-est. Similarly, petitioners no. 5 to 8 having been appointed as ‘sahjogi’ by the Assistant Registrar, Cooperative Societies, can also not be said to be non-est, for the reasons given in the body of this judgment. 20. The Collector having power to appoint Kurk Amins, the appointment of the petitioners 1 to 4 cannot be said to be non-est. Similarly, petitioners no. 5 to 8 having been appointed as ‘sahjogi’ by the Assistant Registrar, Cooperative Societies, can also not be said to be non-est, for the reasons given in the body of this judgment. 20. Now relying upon the test in the case of Raman Lal Keshav Lal Soni (supra), it appears that the Collector was the appointing authority and the petitioners were being paid out the cost recovered according to provisions for the recovery of land revenue and that they had been given revised scale of pay having been performing the same duties and responsibilities as other Kurk Amins of other departments and that their counter parts on salary basis having been so found to hold civil posts by the Hon'ble Supreme Court, as referred to herein-before and that the petitioners were working under the control and supervision of Assistant Registrar of Cooperative Society and are performing public duties. 21. It, therefore, seems to us clear that the Kurk Amins meant for realization of the dues of the Cooperative Societies as appearing in the present case, reveals some ingredients which bring the post of Kurk Amins and the Sahyogis viz. the petitioners maintained for realization of the dues of the cooperative societies as government Servant. Therefore, we do not find any reason to differ from the view taken by the learned trial court that the petitioners have been holding civil posts. We, therefore, decline to interfere with the judgment and order appealed against. 22. In the result the Special Appeal No. 15(SB) of 1994, fails. In our view the State Government sought to rely upon the documents which, on the face of it, had no statutory force. We, therefore, dismiss the said appeal with costs. 23. Now turning to Special Appeal No. 39(SB) of 1994 we find that since the post held by the petitioners are civil post and that they are government servants, therefore, their pay is to be regulated by the existing pay scale according to the rules applicable to the petitioners at par with their counter parts in the department. It is not for the court to decide as to what scale of pay, they are entitled to. No such materials have also been placed before us. It is not for the court to decide as to what scale of pay, they are entitled to. No such materials have also been placed before us. In that view of the matter, we feel it appropriate that so far as the pay scale and arrears and other things relating to the petitioners claim should be decided by the appropriate authority in accordance with law. 24. We therefore, direct the concerned authority to decide the case of the petitioners in the light of observations made above, on the basis of representations to be made by the petitioners within a period of one month hereafter, after giving the petitioners opportunity of being heard and by passing a reasoned order within a period of four months from the date of receipt of representation, that may be made by the petitioner, in terms of this Court's order and communicate the order so passed on the petitioner's representation within a period of one month from the date of the decision and to take appropriate steps implementing such decisions, arrived at upon such representation within a period of four months thereafter and to pay all such dues including arrears of salary, if any, as early as possible.” 18. The judgment of the Division Bench in Chandra Prakash Pandey (supra) was challenged in an appeal by special leave being Civil Appeal Nos.8467-68 of 1995 before the Supreme Court decided on 20.03.2001. Their Lordships of the Supreme Court, while dismissing the appeals, observed : “From a bare perusal of the aforementioned decisions of the two different benches of the High Court it would be clear that after taking into consideration all relevant factors as laid down by this Court in its judgment referred to above, the High Court has come to the conclusion and recorded a finding of fact that Kurk Amins appointed on commission basis for recovery of outstanding dues of the cooperative societies were members of service and government servants. On behalf of the State, it has not been challenged that the aforesaid statements of facts in the two judgments are incorrect. On behalf of the State, it has not been challenged that the aforesaid statements of facts in the two judgments are incorrect. During the course of arguments learned senior counsel appearing on behalf of the State made an unsuccessful attempt to refer to a scheme prepared by the Registrar of Cooperative Societies, but in view of the fact that neither any counter affidavit was filed before the High Court nor the said scheme was filed before this Court either along with the Special Leave Petitions or with any other affidavit, we are of the opinion that it is not possible for us to look into the said scheme as such the same can be of no avail to the State by its mere production in Court during the course of argument.” 19. Contempt petitions, being Contempt Petition (Civil) Nos.110-111 of 2003 in Civil Appeal Nos.8467-8468 of 1995, were filed by the writ petitioners Chander Pal Singh and others, wherein their Lordships, while dismissing the contempt petitions, observed : “Learned senior counsel for the respondents further submitted that this direction given by the Division Bench in the Special Appeal No.129(SB) of 1996 has been affirmed by this Court. As already mentioned above, this Court has affirmed the view taken by the Allahabad High Court that Amins on commission basis are holding the civil posts and they are Government servants. This Court did not change the direction given by the Division Bench of the High Court in Special Appeal No.129 of 1996 and affirmed that direction. This Court did not say that the Amins should be given same salary or that they should be immediately absorbed. This Court affirmed the ratio laid down by the Division Bench of the Allahabad High Court and at the same time affirmed the order as already quoted above. That means the Amins will continue to be treated as Amins on commission basis till they are regularly absorbed in the cadre of Amins. The Division Bench further mandated that till all these Amins are absorbed, fresh recruitment shall not be made. That means the Amins will continue to be treated as Amins on commission basis till they are regularly absorbed in the cadre of Amins. The Division Bench further mandated that till all these Amins are absorbed, fresh recruitment shall not be made. As per Rule 6 of the Rules, 2002 clearly mandated that the vacancies of Amins shall be filled by already serving Amins on commission basis who have made satisfactory recovery during the last five years on the basis of seniority subject to the rejection of the unfit and subject to their willingness and likewise Sahyogies shall be absorbed subject to availability of vacancies. No fresh recruitment shall take place on the post of Amins till all these Amins on commission basis are absorbed. Therefore, in this view of the matter we are of opinion that the respondents have not committed any violation of the order of this Court or that of the Division Bench of the Allahabad High Court.” 20. The next this question came up was before a Division Bench of this Court at Lucknow in Uttar Pradesh Sahkari Sangrah Karamchari Sangh v. State of Uttar Pradesh and others, Special Appeal No.129 (SB) of 1996, preferred from the judgment of the learned Single Judge in Writ Petition No.2829 (SS) of 1992, referring the matter to a Larger Bench, after remarks in the petitioner's favour that we have noticed earlier in this judgment. The Division Bench, agreeing with the remarks of the learned Single Judge on the merits of the matter, held that the learned Judge should not have referred the matter to a Larger Bench at all because his view was supported by the decision of the Supreme Court in State of Assam and others v. Kanak Chandra Dutta, AIR 1967 SC 884 and ought have allowed the writ petition. It was held by the Division Bench in Uttar Pradesh Sahkari Sangrah Karamchari Sangh : “The Kurk Amins appointed on commission basis, who are appointed by the District Collector on account of their appointment as such and the performance of duties are of Government servants irrespective of the fact of manner of payment of their remunerations. Even otherwise on the principle of equal pay for equal work as enshrined under Article 39-D of Constitution of India, they are entitled to same pay and perks admissible to regularly appointed Kurk Amins. Even otherwise on the principle of equal pay for equal work as enshrined under Article 39-D of Constitution of India, they are entitled to same pay and perks admissible to regularly appointed Kurk Amins. The payment of remuneration to the Kurk Amins on commission basis was in fact an incentive for quick and more realization outstanding State dues. If the Kurk Amins on regular basis are holder of civil post, there is no reason to deny such status to Kurk Amins on commission basis. We are of the considered view that the Kurk Amins appointed on Commission basis are equally entitled to be regularized and absorbed as Kurk Amins and paid salary and allowances admissible to the post, but subject to the availability of post. The petitioners, who cannot be absorbed on account of non availability of posts shall be kept in the waiting list and should be allowed to continue as such on commission basis till they are absorbed in the regular cadre of Kurk Amins and till they all are absorbed, fresh recruitment be not made. In view of the discussion above, we endorse and affirm the view of the learned Single Judge that Kurk Amins appointed on commission basis are equally holding the civil post under Government. However, the learned Single Judge having relied upon the observations of the Hon'ble Supreme Court in State of Assam vs. Kanak Chand Datta (supra) need not have made a reference of the matter to the Larger Bench and should have allowed the writ petitions...........” 21. The principle that is discernible from the remarks of Paritosh K. Mukherjee, J. in Uttar Pradesh Sahkari Sangrah Karamchari Sangh is that Cooperative Kurk Amin working on commission basis are government servants holding a civil post, but all of them are not entitled to remuneration by way of salaries. There is a clear distinction between two classes of Cooperative Kurk Amin, one remunerated by salaries and allowances and the other by commission. In the Bench decisions on the point, the history of this dichotomy has been traced to the need for recovery of dues of Cooperative Societies as arrears of land revenue, which have been described in the Bench decision in Chandra Prakash Pandey as 'public debts'. In the Bench decisions on the point, the history of this dichotomy has been traced to the need for recovery of dues of Cooperative Societies as arrears of land revenue, which have been described in the Bench decision in Chandra Prakash Pandey as 'public debts'. The Cooperative Societies Act was noticed in Chandra Prakash Pandey to have been amended to bring in Section 21-A providing for dues of Cooperative Societies to be recoverable as arrears of land revenue within the meaning of Section 284 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 with a non-obstante clause, vis-a-vis Section 153 of the Act last mentioned. 22. Now, for contingencies inherently connected with the business of Cooperative Societies and their public purpose envisaged at that time, the extended machinery for recovery much needed, gave rise to another class of Cooperative Kurk Amin, who were retained on commission basis. They were included in the cadre of service as defined under Section 2(d) of the Rules of 2002 as amended by the Amended Rules of 2005. Rule 2(d) aforesaid reads : “2. Amendment of Rule 2.– (d) 'Cadre of service' means Amins, Sahyogies and Amins on commission basis substantively appointed or deemed to have substantively appointed under these rules or orders in force prior to the commencement of these rules." 23. Now, therefore, while Amin remunerated on commission or salary would surely be government servants and holders of civil posts, it is not that by virtue of being government servants and holders of civil posts every Amin working on a post compensated on the basis of commission is automatically to be absorbed on a post remunerated in terms of a salary and other allowances. The learned Single Judge in Uttar Pradesh Sahkari Sangrah Karamchari Sangh did opine that the petitioners, who are Kurk Amin on commission basis, are entitled to be absorbed as Kurk Amin, paid salary and allowances, but made it subject to availability of posts. As the position of the cadre would show, there are distinct posts earmarked for Kurk Amins remunerated by salary and other allowances, and those, by commission. Salaries are more stable and have not only allowances attached to them, but right to post retiral benefits as well, which do not go with posts remunerated by commission. As the position of the cadre would show, there are distinct posts earmarked for Kurk Amins remunerated by salary and other allowances, and those, by commission. Salaries are more stable and have not only allowances attached to them, but right to post retiral benefits as well, which do not go with posts remunerated by commission. It is for this reason that the learned Single Judge in Uttar Pradesh Sahkari Sangrah Karamchari Sangh further directed that those petitioners, who cannot be absorbed on account of non-availability of posts, should be kept on a waiting list and allowed to work on commission basis till they are absorbed on posts remunerated by salaries. His Lordship also directed that till the exhaustion of the waiting list, to wit, the list of Amin working on commission basis by their absorption on posts remunerated by salaries, no fresh recruitment ought be made. These are precisely the directions that were approved by the Division Bench in appeal by the writ petitioners in Uttar Pradesh Sahkari Sangrah Karamchari Sangh. The Supreme Court too approved the same directions while disposing of Contempt Petition (Civil) Nos.110-111 of 2003 in Civil Appeal Nos.8467-8468 of 1995. 24. Their Lordships of the Supreme Court also noticed that Rule 6 of the Rules of 2002 clearly provides that vacancies of Amin shall be filled by already serving Amin on salary basis and remaining vacancies filled up from amongst Amin working on commission basis, who have made satisfactory recovery during the last five years on the basis of seniority, subject to rejection of unfit and their willingness. The embargo on fresh appointment was directed by their Lordships of the Supreme Court in the same terms as directed by the learned Single Judge of this Court in Uttar Pradesh Sahkari Sangrah Karamchari Sangh. Therefore, while the petitioner as an Amin working on commission basis might have had a right to be absorbed on a post remunerated by salary, the right was dependent on the availability of a post until he was serving. Unfortunately, no such vacancy arose while the petitioner was in service. That is the precise stand of the respondents and we think rightly so. Unfortunately, no such vacancy arose while the petitioner was in service. That is the precise stand of the respondents and we think rightly so. The result of this non-availability of a vacancy or a post remunerated by salary while the petitioner was in service would be that the petitioner cannot claim a right to be placed against a post compensated by salary, allowances and post retiral benefits. 25. The first question is, therefore, answered in the affirmative and it is held that there can be a government servant appointed in accordance with rules against a sanctioned post, but remunerated otherwise than by a monthly salary, say a commission on the revenues that he collects for the Government. The second question is answered in the negative. 26. In the opinion of this Court, therefore, this writ petition must fail. 27. In the result, this writ petition fails and is dismissed with no order as to costs.