judgement:
Civil Appeal No. 433 of 1977.
Appeal by Special Leave from the Judgment and order dated 13th August 1975 of the Allahabad High Court in Second Appeal No. 582/71.
A. P. section Chauhan, Guj Raj Singh Chauhan and T. section Arora for the Appellant.
Indra Makwana for Respondent No. 1.
The Judgment of the Court was delivered by DESAI, J.
How technical plea of want of jurisdiction has pushed a petty employee from pillar to post since April 1964 and pilloried him with cost presumably unbearable by him, is shockingly demonstrated in this case.
First respondent joined service as a petty employee in Cane Development Department of the U.P. State Government somewhere in 1949.
On the formation of the U.P. Co operative Cane Union Federation Ltd. (hereinafter referred to as 'the first appellant '), services of the first respondent stood transferred and were put at the disposal of the appellant and he was styled as Supervisor.
At the relevant time he was rendering service under the second appellant, District Co operative Sugarcane Development Society Ltd. (now designated as Zila Sahkari Ganna Vikas Samiti Ltd.,) Budayun, a federating unit of the first appellant and was incharge of manure godown.
He was suspended from service with effect from October 18, 1958.
A prosecution was launched against him for embezzlement of funds of the second appellant in that he failed to account for 293 1/2 bags of ammonium sulphate entrusted to him as keeper of manure godown.
The case ultimately resulted in the acquittal of the first respondent by the High Court.
Disciplinary proceedings were commenced against him on the same charge and ultimately he was dismissed from service on April 4, 1964.
First respondent filed a suit being O.S. No. 30/64 in the Court of Civil Judge, Budayun, inter alia, for a declaration that the order dismissing him from service was invalid and void and for a further declaration that he continued to be in service and for arrears of pay till the date of the suit.
In the written statement filed on behalf of defendants (present appellants) number of contentions were raised but 561 only one may be noticed for the present appeal.
The contention was that the dispute involved in the suit was between an employee of a Co operative Cane Growers ' Society and the Society and, therefore, civil court had no jurisdiction to entertain the suit but the plaintiff must approach the Registrar of Co operative Societies for reference of dispute to arbitration.
The trial Court decreed the suit as per judgment dated May 24, 1967, and granted the declaration prayed for.
The appellants preferred an appeal being Civil Appeal No. 9 of 1967 to the Court of District Judge, Budayun, who allowed the appeal holding that the Civil Court had no jurisdiction to entertain the suit inasmuch as the dispute was between an officer of a Co operative Society and the Society and the dispute was touching the business of the Society and, therefore, rule 115 of the Co operative Societies Rules enacted by the U.P. Government in exercise of the rule making power conferred by section 43 of the (hereinafter referred to as 'the 1912 Act ') in its application to the U.P. State would be attracted and the dispute will have to be resolved by arbitration by the Registrar.
In accordance with this finding the appeal was allowed and the suit was dismissed.
First respondent preferred Second Appeal No. 582/71 to the High Court of Judicature at Allahabad.
The learned single Judge allowed the appeal holding that as the first appellant is governed by U.P. Sugarcane (Regulation of Supply and Purchases) Act, 1953 ( '1953 Act ' for short), it being both a Co operative Society and a Cane Growers ' Co operative Society and in case of an officer or servant of such cane growers ' cooperative society any dispute between its officers and servants and such society would be governed by rules 54 and 55 framed under 1953 Act which provide a complete machinery for resolution of disputes and rule 108 does not encompass dispute arising out of a disciplinary proceeding between such society and its officers and servants and, therefore, in the absence of such provision for compulsory arbitration of such dispute the jurisdiction of the Civil Court is not barred.
The learned judge accordingly allowed the appeal and remanded the suit to the first appellate court for decision on merits.
Hence this appeal by special leave by original defendants.
The only contention that falls for consideration in this appeal is whether the civil court has jurisdiction to take cognizance of a suit arising out of a disciplinary proceeding held by a Cane Growers ' Cooperative Society, governed both by 1912 Act and 1953 Act against its employee or such dispute falls exclusively within the jurisdiction of the Registrar under the to be resolved by arbitration alone.
A brief survey of the relevant provisions is necessary for the effective disposal of this contention.
562 When the suit was filed in the year 1964 the Co operative Societies Act, 1912, as adopted and applied by U.P. State was in force in U.P. State.
The expression 'officer ' has been defined in section 2(d) of the Act as under: "2.
Definitions In this Act, unless there is anything repugnant in the subject or context, (d) 'officer ' includes a chairman, secretary, treasurer, member of committee, or other person empowered under the rules or the bye laws to give directions in regard to the business of the society".
Section 43 conferred power on the Local Government to make rules to carry out the purposes of the Act for the whole or any part of the province, on various topics enumerated in various sub clauses of the section.
Clause (1) of section 43(2) is relevant.
It reads as under: "43.
Rules (1) The State Government may, for the whole or any part of the State and for any registered Society or class of such societies make rules to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may (1) provide that any dispute touching the business of a society between members or past members of the society or persons claiming through a member or past member or between a member or past member or persons so claiming and the committee or any officer shall be referred to the Registrar for decision, or if he so directs, to arbitration, and prescribe the mode of appointing an arbitrator or arbitrators and the procedure to be followed in proceedings before the Registrar or such arbitrator or arbitrators, and the enforcement of the decisions of the Registrar or the awards of arbitrators".
Armed with this power the U.P. State enacted what is styled as U.P. Co operative Societies Rules, 1936, Rule 115 of the rules reads as under: "115.
Any dispute touching the business of a registered society (i) between members or past members of a society or persons claiming through a member or past member, (ii) or between a member or a past member or persons so claiming and the society or its committee or any officer of the society, (iii) between the society or its committee and any officer of the society, and (iv) between two or more registered societies, shall be decided either by the Registrar or by arbitration and shall for that purpose be referred in writing to the Registrar.
563 Explanation 1.
A dispute shall include claims for amounts due when a demand for payment is made and is either refused or not complied with whether such claims are admitted or not by the opposite party.
Explanation 2.
An officer shall include a person appointed for the supervision of the society.
Explanation 3.
The business of a society includes all matters relating to the objects of the society mentioned in the bye laws as also those relating to the election of office bearers of a society".
This rule 115 has to be interpreted in the light of rule 134 which reads as under: "134.
A decision of an arbitrator or arbitrators under these rules if not appealed against within the said period and an order of the Registrar shall, as between the parties to the dispute, not be liable to be called in question in any civil or revenue court and shall in all respects be final and conclusive".
There is another Act which has a bearing on the topic under discussion styled as U.P. Sugarcane (Regulation of Supply and Purchases) Act.
It is an Act enacted to regulate the supply and Purchase of Sugarcane required for use in sugar factories and gur, rab or khandsari sugar manufacturing units and matters incidental or ancillary thereto.
It contemplates setting up of a sugarcane Board and provides for its functions and duties and the methods of filling up vacancies and regulating its finances.
Section 20 confers power on the Governor to impose by a notification a cess not exceeding the amount prescribed in the section on the entry of sugarcane into an area specified in such notification for consumption, use or sale there.
Section 28 confers power on the State Government to make rules for the purpose of carrying into effect the provisions of the Act.
Clause 2(n) in this behalf is relevant.
It reads as under: "28.
Power to make rule (1) The State Government may make rules for the purpose of carrying into effect the provisions of this Act.
(2) Without prejudice to the generality of foregoing power, such rules may provide for xxx xxx xxx (n) the constitution, operation, management, supervision and audit of Canegrowers ' Co operative Societies and Councils and the U.P. Cane Unions Federations and conditions relating to recognition of such societies or their federation for purposes of this Act and Rules and control of their staff and finances".
564 Armed with this power the U.P. Government enacted the U.P. Sugarcane (Regulation of Supply and Purchase) Rules, 1954.
The relevant rules relied upon are rules 54, 55 and 108.
They may be reproduced in extenso: "54.
The power to appoint, grant leave of absence to, punish, dismiss, transfer and control Secretaries, Assistant Secretaries and Accountants of Cane growers Co operative Societies, whether permanent or temporary, shall be exercised by the Federation subject to the general control of the Cane Commissioner who may rescind or modify and order of the Federation: Provided that the Cane Commissioner may himself exercise any of such powers in case of emergency".
Similar powers as stated in Rule 54 may be exercised by the society in respect of the other staff, subject to the regulations made by the Federation and the general control of the Cane Commissioner".
Any dispute touching the business of (a) a Cane growers ' Co operative Society between members, or between members and society, or between two registered societies, or between a society and a factory, or between a cane grower and a factory, (b) a council and a Cane growers ' Co operative Society, or between a council and a factory or between a council and a cane grower, regarding the payment of contribution to a council by a society or a factory and any other dispute relating to the business of a council, shall be referred to the Cane Commissioner for decision.
The Cane Commissioner shall decide it himself or refer it to arbitration.
No suit shall lie in a Civil or Revenue court in respect of any such dispute".
Having had the survey of the relevant provisions of the Acts and the Rules attention may now be focused on the main and the only controversy in this appeal whether in 1964 when the first respondent as plaintiff filed the suit for a declaration that the order dismissing him from service passed by the first appellant is void and for a declaration that he continues to be in service of the first appellant, in the Civil Court at Budayun, that Court had jurisdiction to entertain the suit or not.
First appellant is a federation of Cane Growers ' Co operative Societies and second appellant is a federating unit or first appellant.
At the relevant time first and second appellants were governed by the 1912 Act as well as by the 1953 Act.
Each as a Co operative Society would be governed by the 1912 Act and each as a Cane growers ' Co operative Society and its federation, for the purpose 565 of regulation of supply and purchase of sugarcane, would be governed by the 1953 Act.
The question is whether the Civil Court would have jurisdiction to entertain a suit in 1964 filed by an employee of a co operative society against the Co operative Society for a declaration that the order dismissing him from service is void and for a declaration that he continued to be in service with an alternative prayer for damages ? This contention may be examined first, inter alia, under the provisions of 1912 Act and the rules framed thereunder and subsequently whether the application of the 1953 Act will have any impact on the conclusion.
We have extracted above the definition of the expression 'officer ' in 1912 Act.
Undoubtedly, it is an inclusive definition.
If only the officers enumerated in the definition are comprehended within the expression 'officer ', the first respondent is not an officer in the sense that he was neither a Chairman, Secretary, Treasurer, or a member of the Committee.
But the expression 'officer ' also embraces such other person empowered under the rules or the bye laws to give directions in regard to the business of the society.
If ejusdem generis canon of construction were to be invoked in construing the expression 'officer ' the expression 'other persons ' must take colour from the words preceding it and accordingly other persons therein envisaged must have some semblance of comparison in respect of power and authority to give directions with regard to the business of the society with the enumerated persons such as chairman, secretary, treasurer or member of the committee.
If every employee of the society were to be an officer it would not be necessary for the legislature to provide that persons other than chairman, secretary, treasurer or member of the committee must be such who must have under the rules or the bye laws the power to give directions in regard to the business of the society.
First respondent was at the relevant time a supervisor in charge of manure godown drawing a salary of Rs. 150 p.m.
Nothing has been pointed out to us by the appellants with reference either to the rules or bye laws that first respondent as supervisor was empowered by any rules or the byelaws to give directions in regard to the business of the society.
First respondent thus not being either chairman, secretary, treasurer or member of the committee, or such other person shown to have been empowered under the rules or the bye laws to give directions in regard to the business of the society, unquestionably he was not an officer of the society.
We are conscious of the fact that the definition of the expression 'officer ' is an inclusive definition.
An inclusive definition widens the etymological meaning of the expression or term including therein that which would ordinarily not be comprehended therein.
Firstly, keeping apart the expansive definition by including 566 officers who would otherwise not be comprehended in the expression 'officer ', it may be necessary to ascertain whether first respondent, giving the expression 'officer ' its ordinary etymological meaning, would be comprehended therein.
It may be noticed that the legislature never intended to include every employee or servant of the society within the expression 'officer '.
There is some element of a right to command in the word 'officer ' with someone whose duty it would be to obey.
If there is an officer ordinarily there will be someone subordinate to him, the officer enjoying the power to command and give directions and subordinate to obey or carry out directions.
It may be that even one who is to carry out directions may be an officer in relation to his subordinates.
Thus, what is implicit in the expression 'officer ' is made explicit by the latter part of definition which provides that such other person would also be an officer who is empowered under the rules and bye laws to give directions with regard to the business of the society.
If it is contended that a particular person is an officer because he is empowered to give directions with regard to the business of the society, it would be a question of fact in each case whether a particular person is an officer or a servant or an employee.
Unless the appellants are in a position to point out that first respondent was an officer in the sense that he had power to command and insist on subordinates to obey his directions with regard to business of the society, it would be difficult to believe that a person designated as supervisor drawing a salary of Rs. 150 and incharge of manure godown would be an officer.
In this connection it would be advantageous to refer to section 43(g) of the 1912 Act which confers power on the Local Government to make rules providing for the appointment, suspension and removal of the members of the committee and other officer, and for the procedure at meetings of the committee, and for the powers to be exercised and the duties to be performed by the Committee and other officers.
No rule enacted in exercise of this power was pointed out to us to assert that first respondent would be such officer as contemplated in section 43(g).
Some illustrative cases were relied upon to point out that a godown keeper would not be an officer within the meaning of section 2(d).
In Co operative Central Bank vs Trimbak Narayan Shinganwadikar, an accountant serving in a co operative bank was held not to be an officer of the Bank inasmuch as he had no power to give any direction in regard to the business of the society nor was any rule framed empowering an accountant to give directions.
He was held to be a servant of the society falling outside the definition of the expression 'officer '.
In Manjeri section Krishna Ayyar vs Secretary, Urban Bank Ltd. & Anr.(2) 567 legal adviser of a co operative society was held to be an officer of the society within the meaning of section 2(d).
In Kailash Nath Halwai vs Registrar, Co operative Society, U.P. & Ors.(1), a Division Bench of the Allahabad High Court speaking through Raghubar Dayal, J. (as he then was), held that a manager of a shop run by a Co operative Society was an officer of the society on the finding that he was in a position to give directions in regard to the business of the shop, a business which was included in the business of the society.
The vital contention in this matter was whether rule 115 of the U.P. Co operative Societies Rules, 1936, was ultra vires, and it was so held.
However, this decision was specifically overruled by a Full Bench of the Allahabad High Court in Abu Bakar & Anr.
vs District Handloom Weavers ' Co operative Society, Mau & Anr.(2), in which it was specifically held that rule 115 of the Rules framed under the , is not ultra vires.
On a conspectus of these decisions and the definition of the expression 'officer ' both expansive definition and its etymological sense, first respondent a supervisor working as a godown keeper could not be styled as an 'officer ' of the Co operative Society.
The next limb of the argument is whether rule 115 enacted in exercise of power conferred by clause (1) of sub section (2) of section 43 of the 1912 Act would be attracted.
Clause (1) of section 43(2) confers power to make rules providing for resolution of disputes envisaged by the clause between the parties contemplated by the clause by the Registrar by arbitration.
In exercise of this power rules 115 and 134 have been enacted.
When rules 115 and 134 are read in juxtaposition it becomes clear that if the dispute is one contemplated by rule 115 and arises between the parties therein envisaged it shall have to be resolved by referring the same to the Registrar who will have to get it resolved by arbitration either by himself or by arbitrator or arbitrators appointed by him.
Rule 134 provides that a decision of an arbitrator or arbitrators under the rules, if not appealed as therein provided, shall be final as between the parties in dispute and not liable to be called in question in any civil or revenue court and shall in all respects be final and conclusive.
If, therefore, the 1912 Act confers power to enact rules and the rules so enacted are statutory and if the rules provide for certain types of disputes between certain specific parties to be resolved by arbitration and the decision of the arbitrators is made final and conclusive not correctible by the civil court or unquestionable before the civil court, undoubtedly, the jurisdiction of the civil court 568 in respect of such specified disputes between specified parties enumerated in rule 115 would be wholly excluded.
The question boils down to this: is a dispute between an employee other than an officer of a co operative society and the society arising out of a disciplinary proceeding one which would fall within the ambit of rule 115 ? Clause (iii) of rule 115 was relied upon by the appellant to urge that such a dispute would be one touching the business of a registered society and it would be one between the society and its committee and any officer of the society.
This contention would stand disposed of in view of our finding that the first respondent is not an officer of the society.
In order to attract rule 115 it must be shown (i) that the dispute is the one touching the business of the co operative society; and (ii) that it is between the society and any officer of the society.
Both the conditions have to be cumulatively fulfilled before rule 115 is attracted which would result in ouster of the jurisdiction of the civil court in respect of dispute in view of the provision contained in rule 134.
The first question is, whether a dispute arising out of a disciplinary proceeding resulting in dismissal of an employee of a co operative society is one touching the business of the society.
It is unnecessary to dilate upon this aspect in view of the two decisions of this Court.
In Deccan Merchants Co operative Bank Ltd. vs M/s. Dalichand Jugraj Jain & Ors., (1) section 91 of the Maharashtra Co operative Societies Act, 1968, came up for consideration before this Court.
After analysing the section and observing that five kinds of disputes are enumerated in sub section
(1) of section 91, the fifth being disputes touching the business of a society, the Court held as under: "It is clear that the word 'business ' in this context does not mean affairs of a society because election of office bearers, conduct of general meetings and management of a society would be treated as affairs of a society.
In this sub section the word 'business ' has been used in a narrower sense and it means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye laws".
Proceeding from this angle the Court held that the dispute between a tenant of a member of the bank in a building which has subsequently been acquired by the Bank cannot be said to be a dispute touching the business of the Bank.
In reaching this conclusion, this 569 Court disapproved the view in Kisanlal & Ors.
vs Co operative Central Bank Ltd.(1), which has relied upon before us.
Confirming the view in the Deccan Merchants Co operative Bank(2), this Court in Co operative Central Bank Ltd. & Ors.
vs Additional Industrial Tribunal, Andhra Pradesh & Ors.,(3) posed a question to itself whether the dispute between the co operative society and the employee touches the business of the society in the sense explained by this Court in that case.
The Court answered the contention as under: "Applying these tests, we have no doubt at all that the dispute covered by the first issue referred to the Industrial Tribunal in the present cases could not possibly be referred for decision to the Registrar under section 61 of the Act.
The dispute related to alteration of a number of conditions of service of the workmen which relief could only be granted by an Industrial Tribunal dealing with an industrial dispute.
The Registrar, it is clear from the provisions of the Act, could not possibly have granted the reliefs claimed under this issue because of the limitations placed on his powers in the Act itself.
It is true that section 61 by itself does not contain any clear indication that the Registrar cannot entertain a dispute relating to alteration of conditions of service of the employees of a registered society; but the meaning given to the expression 'touching the business of the society ', in our opinion, makes it very doubtful whether a dispute in respect of alteration of conditions of service can be held to be covered by this expression.
Since the word 'business ' is equated with the actual trading or commercial or other similar business activity of the society, and since it has been held that it would be difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects, such as laying down the conditions of service of its employees, can be said to be a part of its business, it would appear that a dispute relating to conditions of service of the workmen employed by the society cannot be held to be a dispute touching the business of the society".
Therefore, on the strength of the aforementioned two decisions it has to be held that a dispute arising out of a disciplinary proceeding resulting in dismissal of an employee of the society cannot be said to be a dispute touching the business of the society.
To some extent this conclusion can be reinforced by reference to the U.P.
Co operative Societies Act, 1965, which repealed and replaced 570 the , in its application to the State of U.P. Section 70 of the 1965 Act provides for settlement of disputes.
The relevant portion reads as under: "70.
Disputes which may be referred to arbitration (1) Notwithstanding anything contained in any law for the time being in force, if any dispute relating to the constitution, management or the business of a co operative society other than a dispute regarding disciplinary action taken against a paid servant of a society arises . . ".
It will be crystal clear that while making a statutory provision for resolution of disputes involving co operative societies by arbitration by the Registrar, the legislature in terms excluded a dispute relating to disciplinary action taken by the society against paid servants of the society from the purview of the compulsory arbitration.
It is legislative exposition of the topic under discussion.
It must, however, be made distinctly clear that at the relevant time 1912 Act was in force and the contention has to be answered with reference to 1912 Act and the rules framed thereunder.
It is, however, difficult to believe that the 1965 Act which repealed and replaced the 1912 Act excluded from the field of operation that which was already included under the repealed Act.
On the contrary it would appear that what was implicit in the 1912 Act and the rules framed thereunder that such a dispute did not touch as the business of the society and was not within the purview of the compulsory arbitration, was made explicit by expressly excluding it from the field of compulsory arbitration.
However, we would rest this judgment on the second limb of the submission in that not only the dispute must be one touching the business of the society but it must be between the co operative society and its officer.
Firstly respondent being shown not to be one of enumerated officers of the society nor a person empowered to give directions in regard to the business of the society under the rules or the bye laws, he would not be an officer within the meaning of the expression in 1912 Act.
Any dispute between an employee not being an officer and the society would not attract rule 115.
In that view of the matter such a dispute would fall outside the purview of rule 115 and it being a civil dispute and civil court will have jurisdiction to entertain and adjudicate upon the same.
The High Court approached the matter from an entirely different angle.
The learned judge held that this case would be governed by the 1953 Act and rules 54 and 55 enacted in exercise of the powers conferred by section 28 of the 1953 Act have provided a specific forum, viz., a reference to the Cane Commissioner and appeal to the State 571 Government and as rule 108 is not attracted the dispute is not required to be referred to arbitration and, therefore, the civil court will have jurisdiction to entertain the suit.
With respect, it is difficult to subscribe to this view of the High Court.
1953 Act has been enacted to regulate supply and purchase of sugarcane required for use in sugar factories, gur, rab and khandsari manufacturing units.
It envisages setting up of a sugarcane board and the board was entrusted with the function pertaining to the regulation, supply and purchase of cane for sugar factories and for the maintenance of healthy relation between occupiers, managers, of factories, cane growers, co operative societies, etc.
The Act also envisaged setting up of a development council and its functions have been enumerated in section 6.
On a survey of these provisions it appears that the Act was enacted to regulate relations between the cane growers on one hand and sugar factories on the other.
The expression 'cane growers ' co operative society ' has been defined in section 2(f) to mean a society registered under the , one of the objects of which is to sell cane grown by its members and includes the federation of such societies registered under section 8 of the said Act.
The appellant is thus a co operative society and it being a federation of such co operative societies it is also included in the expression "cane growers ' co operative society".
Section 28(2)(n) of the Act was relied upon to show that the State Government has power to frame rules amongst others, for the control of the staff and finances.
In exercise of this power rules 54 and 55 have been enacted.
Rule 54 provides that the power to appoint, grant leave of absence, to punish, dismiss, transfer and control secretaries, assistant secretaries and accountants of Cane Growers ' Co operative Societies whether permanent or temporary shall be exercised by the federation, subject to the general control of the Cane Commissioner who may rescind or modify any order of the Federation.
There is a proviso which is not relevant for the present purpose.
Rule 55 confers powers similar to those enumerated in rule 54 to be exercised by the society in respect of other staff subject to the regulations made by the federation and the general control of the Cane Commissioner.
Shorn of embellishment, rule 55 confers power on the Federation, namely, the first appellant, to make regulations for appointment, granting leave of absence, punishment, dismissal and transfer of the staff other than those enumerated in rule 54 and these regulations have to be made subject to the general control of the Cane Commissioner Rule 108 provides for compulsory arbitration of disputes therein mentioned and it is common ground that a dispute of the present nature under examination will not be covered by rule 108.
The High Court observed that rules 54 and 55 being a complete code in itself with regard to regulation making power for disciplinary action with a provision for 572 appeal to the Cane Commissioner and rule 108 not being attracted, the civil court will have jurisdiction to entertain the present dispute.
The High Court overlooked the fact that 1953 Act neither repeals nor replaces 1912 Act.
A cane grower other than a Cane growers ' Cooperative Society would be governed by 1953 Act but the cane grower not being a co operative society it would not be governed by the 1912 Act.
A Cane Growers ' Co operative Society would be governed with regard to the provisions for law of Co operative Societies by 1912 Act and in respect of its business of growing and selling cane it would be governed by 1953 Act.
Both Acts operate in an entirely different field and are enacted with different objects in view.
1953 Act neither trenches upon 1912 Act nor supersedes or supplants any provision of it.
Therefore, some provisions of 1953 Act cannot override or supersede the provisions of 1912 Act and by mere reference to the provisions of 1953 Act the High Court was in error in totally overlooking and ignoring the provisions in 1912 Act and the rules enacted thereunder.
However, in view of our finding that the dispute brought before the Civil Court in this case was not a dispute between a society and its officer and, therefore, one of the conditions for attracting rule 115 having not been satisfied, the civil court will have the jurisdiction to entertain the suit.
For these reasons the decision of the High Court is confirmed.
Accordingly this appeal fails and is dismissed with costs.
As the dispute is very old, we hope that it would be expeditiously disposed of by the learned district judge to whom the matter was remanded by the High Court.
S.R. Appeal dismissed.

summary/full:
The respondent joined service in Cane Development Department of the U.P. State Government in 1949 and later on transferred to District Co operative Sugarcane Development Society Ltd., a federating unit of the U.P. Co operative Cane Union Federation Ltd. He was prosecuted and convicted for alleged embezzlement of funds, but was acquitted by the High Court in appeal.
Later as a result of departmental disciplinary proceedings, his services were terminated.
Respondent, therefore, filed a Civil Suit in 1964 which was decreed on May 24, 1967 rejecting the appellant 's plea of bar of jurisdiction by the Civil Court under Rule 115 of the Co operative Societies Rules, 1936, made under section 43 of the .
The First Appellate Court accepted the appeal and dismissed the suit holding that the dispute was one "touching the business of the Co operative Society" and its employee and hence the Civil Court is barred from entertaining the suit.
However, in the second appeal to it, the High Court reversed the First Appellate Court 's order holding that as the respondent is governed by U.P. Sugarcane (Regulation of Supplies and Purchases) Act, 1953, it being both a Co operative Society and a Cane Growers ' Co operative Society and in case of an officer or servant of such Cane Growers ' Co operative Society any dispute between its officers and servants and such society would be governed by Rules 54 and 55 framed under the 1953 Act which provide for a complete machinery for resolution of disputes and Rule 108 does not encompass dispute arising out of a disciplinary proceeding between such society and its officers and servants and therefore, in the absence of such provision for compulsory arbitration of such dispute, the jurisdiction of the Civil Court is not barred.
Dismissing the appeal by special leave, the Court ^ HELD: (1) On a conspectus of the High Court 's decision and the definition of the expression "officer" both expansive definition and its etymological sense, first respondent a Supervisor working as a Godown Keeper could not be styled as an officer of the Co operative Society, he not being either Chairman.
Secretary, Treasurer, or a member of the Committee or such other person shown to have been empowered under the rules or the bye laws to give directions in regard to the business of the society.
And the legislature never intended 559 to include every employee or servant of the society within the expression "officer".
Neither any rule made under section 43(g) of the 1912 Act refers the respondent as an officer.
[567 D, 565 G, 566 F] Co operative Central Bank vs Trimaak Narayan Shinganwadikar, ; Manjeri section Krishna Ayyar vs Secretary, Urban Bank Ltd. & Anr.
AIR 1933 Mad. 682; Kailash Nath Halwai vs Registrar, Co operative Society, U.P. & ors.
, AIR 1960 Allahabad 194 and Abu Baker & Anr.
vs District Handloom Weavers ' Co operative Society, Mau & Anr., AIR 1966 Allahabad 12, referred to.
(2) Rules 115 to 134 of the Co operative Societies Rules, 1936 make it clear that if the dispute is one contemplated by Rule 115 and arises between the parties therein envisaged it shall have to be resolved by referring the same to the Registrar who will have to get it resolved by arbitration either by himself or by arbitrator or arbitrators appointed by him.
Rule 134 provides that a decision of an arbitrator or arbitrators under the rules, if not appealed as therein provided, shall be final as between the parties to the dispute and not liable to be called in question in any civil or revenue court and shall in all respects be final and conclusive.
If, therefore, the 1912 Act confers power to enact rules and the rules so enacted are statutory and if the rules provide for certain types of disputes between certain specific parties to be resolved by arbitration and the decision of the arbitrators is made final and conclusive not correctible by the civil court or unquestionable before the civil court, undoubtedly, the jurisdiction of the civil court in respect of such specified disputes between specified parties enumerated in Rule 114 would be wholly excluded.
[567 F 568 A] (3) In order to attract Rule 115 it must be shown (i) that the dispute is the one touching the business of the co operative society; and (ii) that it is between the society and any officer of the society.
Both the conditions have to be cumulatively fulfilled before Rule 115 is attracted which would result in ouster of the jurisdiction of the civil court in respect of dispute in view of the provision contained in Rule 134.
A dispute arising out of a disciplinary proceeding resulting in dismissal of an employee of the society cannot be said to be "a dispute touching the business" of the society within the meaning of the Rule 115.
[568C, 569G] Deccan Merchants Co operative Bank Ltd vs M/s. Dalichand Jugraj Jain & Ors.
,[1969] 1 SCR 887; Co operative Central Bank Ltd & Ors.
vs Additional Industrial Tribunal, Andhra Pradesh & ors., followed.
Kisanlal & ors.
vs Co operative Central Bank Ltd., AIR 1946 Nagpur 16 approved.
(4) Section 70 of the U.P. Co operative Societies Act, 1965 also makes it clear that while making a statutory provision for resolution of disputes involving co operative societies by arbitration by the Registrar, the legislature in terms excluded a dispute relating to disciplinary action taken by the society against paid servants of the society from the purview of the compulsory arbitration.
What was implicit in the 1912 Act and the rules framed thereunder that such a dispute did not "touch the business of the society" and was not within the purview of the compulsory arbitration was made explicit by section 70 of the 1965 Act (which repeal and replace 1912 Act) by expressly excluding it from the field of compulsory arbitration.
[570C, E] 560 (5) The approach of the High Court in coming to the conclusion that the civil court will have jurisdiction to entertain the suit, however, is not correct and totally overlooks and ignores the provisions in 1912 Act and the rules enacted thereunder.
U.P. Sugarcane (Regulation of Supplies and Purchases) Act, 1953 and the operate in an entirely different field and are enacted with different objects in view.
1953 Act neither trenches upon 1912 Act nor supersedes or supplants any provision of it.
[572 C]


judgement:
CIVIL APPEAL NOS .
1317 1318 of 1976.
Appeals by Special Leave from the Judgment and order, dated 13 9 1973 of the Allahabad High Court in CIVIL Misc.
Writ Petition NOS.
2719/69 & 4034/69.
AND WRIT PETITION NOS.
864 / 79 and 251 / 80 (Under Article 32 of the Constitution) 452 R. K. Garg, V. J. Francis, D. K. Garg and Sunil Kumar Jain for the Appellants in CA No. 1317/76 and Petitioner in WP 251/80.
K. K. Singhvi, Anil Kumar Gupta, Brij Bhushan, Virendra Singh, N. P. Mahendra, A. M. Tripathi and section section Khanduja for the Appellant in CA 1318 / 76.
Yogeshwar Prasad, Ashok K. Srivastava and Mrs. Rani Chhabra for the Petitioners in WP No. 864/79.
D. V. Patel, Anil Kumar Gupta, Brij Bhushan, Virendra Singh, N. P. Mahendra and A. M. Tripathi for the Intervener in CA No. 1317/76.
G. N. Dikist and O. P. Rana for Respondent No. 1 in both the appeals.
Shanti Bhushan and M. C. Bhndare for the Respondents Nos.
2 3 in CA No. 1317/76 & R 21 in CA No. 1318/76.
section Markandaya and V. P. Singh for R. 9 in CA No. 1318/76.
The Judgment of the Court was delivered by KRISHNA IYER, J.
This case illustrates the thesis that unlimited jurisdiction under article 136 self defeatingly attracts unlimited litigation which, in turn, clogs up and slows down to zero speed the flow of ultimate decisions, what with the lengthy orality and legal nicety of lawyers ' advocacy.
This bunch of appeals, affecting this fortunes of a large number of engineers, is evidence of the flood of 'service ' litigation which overwhelms the courts, paralyses public offices and demands of our pyramidal Justice System basic changes, jurisdictional and processual.
The perennial problems of Service Justice, which currently crowd the dockets of the higher courts, save all cases of basic breaches of the fundamental law, may well be made over to expert bodies, high powered and final but presided over by top judicial personnel.
Service Jurisprudence is a specialised branch best administered by Special tribunals, not routinely under article 226.
We do not pontificate but share thoughts.
We are concerned mainly with the competitive claims to seniority mainly as between three groups of engineers belonging to the U. P. Service of Engineers (Irrigation Branch Graduate engineers directly recruited by the Public Service Commission by competitive examination, graduate engineers once appointed in 453 numbers but later absorbed after consultation with the Public Commission and diploma holders later promoted as Assistant Engineers.
Brushing aside the hoary history of the Service when the British were hardly concerned with the development of India 's natural resources, we may start the story with the U. P. Public Works Department of which the Irrigation Wing was a part, the other branch being Buildings and Roads.
Later on, separate departments for Buildings and Roads and for irrigations were formed in 1946 as a developmental imperative of the State.
Recruitment to the Service we are here concerned only with the Irrigation Department was governed by vintage Rules framed under section 96B of the Govt.
Of India Act, 1919, which had a confused course, and that factor i.e. lack of comprehensive structural engineering of the Engineering Service Rules is largely responsible for frequent group clashes among the broad brotherhood of engineers whose whole hearted service, now distracted by litigation, is needed for national reconstruction.
But national dedication so vital to poverty eradication,, is subject to one rider in our society viz. charity begins at home.
And so, for their own justice oriented survival, the groups are fighting in courts while the demands of developmental justice to the people need their presence in the countryside.
There were, to begin with, Class I and Class 11 officers, but in 1948, the two were fused into one, viz. the U. P. Service of Engineers (Junior and Senior Scales).
The Service came into being but fresh rules of recruitment were not made.
Thus, a Service was born but then the rules regulating recruitment, conditions and classifications were unborn.
So, Government relied on the old Rules of 1936 for these purposes with some G. O. Or other issued under pressure of exigencies.
The past projected into the present with ad hoc changes a process which, not being scientific nor systematic.
was bound to produce injustice, as it has, in this Service.
The dialectics of Justice to Public Services lead to conflicts between the thesis (the old conditions and anti thesis (the new expectations until a synthesis realist equilibrium without discrimination) is reached be enlightened governmental policy making.
Had Rules for the Service, in tune with the Constitution and the updated facts of life been made by Government, instead of flirting with the past and improving for the present, things would have been different.
Court litigation is not designed for the end, but judges cannot but make do with what fossil Service Rules with engrafted mutations survive.
To dig into the past is our lot in this case.
We do not blame Government for failure to make a whole scheme of post Constitution Rules of Service, pre occupied as it may well be with other priorities.
454 The struggle between the various groups is for seniority, in some cases even for retention of regular appointment.
The State.
had prepared a list of seniority first in December 1965.
This list was attacked as bad in law and the High Court by its judgment of October 1967 in Civil Misc.
Writ No. 4416 of 1966 ordered: "The petition, therefore, succeeds and is allowed.
The respondents are directed not to give effect or act in virtue of the seniority list announced on December 30, 1965.
They are further directed to redetermine the seniority inter se of the petitioner and respondents 2 to 49 in accordance with rule 23.
" Purporting to act on this direction a fresh seniority list was drawn up by Government in May 1969, and this, in turn was challenged by many as violative of article 14 and the High Court allowed some of the writ petitions and held: "For the reasons set out above, Civil Misc.
Writ Petition .
No. 2719 of 1969 is allowed.
The orders of appointment in the substantive capacity of respondents Nos. 2 to 169 and the seniority list, dated 13 5 1969 (Annexure 'K ' to the petitions are quashed.
The State Government is directed to make fresh appointments and draw seniority list in accordance with law keeping in view the office Memorandum.
dated 7 12 1961" The broad perspective we must adopt is plain enough in the light of this Court 's decision (see the concluding observations of Chandrachud, J. in the State of Jammu and Kashmir vs Shri Triloki Nath Khosa and Ors.
The goal of an egalitarian society must be reflected in the process of classification of services, equalisation being the essential direction and perpetration of divisions and proliferation of classes being reduced to the minimum.
Humanism cum equalism, as a way of life, is integral to our constitutional order and slow though the process be, sure shall our steps be towards fusion, not fission in the various Departments of Public Service.
Unfortunately, this constitutional ethos has yet to be imprinted upon the genetic code of the "United Provinces Service of Engineers Class II Irrigation Branch Rules" framed under section 96B of the Government of India Act, 1919 and continued under article 313 of the Constitution.
The result is micro classifications ad hoc amendments, uncertain service conditions, litigative excursions, and indefinite postponement of even a Seniority List.
The ancient year extant 1936 Rules relating to Class II service framed under different conditions, still govern the Service with such 455 patch work modifications through Government Memoranda as were made by the State from time to time.
A garment of seams and stitches to day drapes this developmentally strategic department despite Reports by two expert Committees.
and this anachronistic set of Rules must be adapted by the Court now to fit the over grown anatomy of Irrigation Engineers (Junior Division).
The fury of the controversy rages round seniority in service among the triple categories of Assistant Engineers which we will presently describe.
Before that.
the basic rules of 1936.
Rule 23 regulates inter se seniority and reads thus: "Seniority in the service shall be determined according to the date of the order of appointment to it, provided that if the order of the appointment of two or more candidates bears the same date, their seniority inter se shall be determined according to the order in which their appointment has been notified".
(emphasis added) So, the order of appointment to the Service is decisive of seniority and the service horoscope of each Assistant Engineer has to be cast with reference to his appointment order.
The next question then, is, when is an engineer appointed to the Service? When, under the Rules, he becomes a member of the Service.
until he gains entry into the Service he cannot claim to be appointed to it.
To hover around with prospects of entry is not the same as actual entry.
Therefore, we have to examine when an engineer becomes a member of the Service under the Rules.
Clause (b) of Rule 3 defines 'Member of the Service ' to mean a government servants 'appointed in a substantive capacity under the provisions of these rules. to a post in the cadre Of the Service. ' What, then, is the cadre of the Service? What do we mean by appointment in a substantive capacity to a post in the cadre? Can there be a temporary post included in the cadre? Here, r. 1 becomes relevant.
Rule 4 prescribes the sanctioned strength of the cadre.
It provides that the government may, subject to the provisions of r. 40 of the Civil Services (Classification.
Control and Appeal) Rules, 1930 'increase the cadre by creating permanent or temporary posts from time to time as may be found necessary. ' So a cadre post can be permanent or temporary and if an engineer were appointed substantively to a temporary or permanent post he becomes a member of the Service.
The touchstone then, is the substantive capacity of the appointment.
Here we get into service jargon with slippery semantics and flavoured officialese.
456 Now, we must go to the plural sources of recruitment the arrangement of the ratio among the sources and the requirements for them to get into the Service.
Rules S and 6 relate to this branch of enquiry.
The sources of recruitment are set out thus: Sources of Recruitment: (i) by direct appointment from amongst engineer students who have passed out of the Thomson Civil Engineering College.
Roorkee, and who have completed a course of training in the Irrigation Branch as engineer students, after consulting a permanent Board of Selection, (ii) by direct appointment after advertisement and after consulting a permanent Board of Selection; (iii) by the appointment of officers in the temporary service of the United Provinces.
in Public Works Department, Irrigation Branch, after consulting a permanent Board of Selection; (iv) by promotion of members of the United Provinces Subordinate Engineering Service or of Upper Subordinates in the Public Works Department, Irrigation Branch, who have.
in the opinion of Government shown exceptional merit.
We have stated earlier that these Rules were framed long before the Constitution of India and have suffered many amendments one of which is the substitution of the Public Service Commission for a permanent Board of Selection.
A Proviso has been added to r. S and that runs thus: "Provided that it will not.
be necessary to consult the Com mission in the case of appointment of a temporary officer to a permanent vacancy if he has already been appointed to a temporary post in the cadre of service after consultation with the Commission.
The amendments shall have effect from the date of notification.
" This Proviso shows 'that temporary officers (whatever that expression means) could be appointed to permanent vacancies without consultation with the Commission, if they had already been appointed to temporary posts after consultation with the Commission.
Thus, we gel the idea of temporary posts and permanent posts, provisional appointments and substantive appointments.
Indeed, the bewildering variety was brought out during arguments by reference to the Fundamental Rules.
A permanent posts means "a post carrying a definite rate of pay sanctioned without limit of time 457 A temporary post means A "a post carrying a definite rate of pay sanctioned for a limited time [FR 9(30)] Fundamental Rule 22B speaks of holding a post in a substantive, temporary of officiating capacity.
But this jargon is not the last word after the Constitution came to be enacted.
Be that as it may, the sources of recruitment are 4 fold.
The Thomson College appointments were formally stopped by a G. O. Of 1950.
Another big change took place.
Direct recruitment, routed through the Public Service Commission was introduced in 1961.
The rules of procedure for direct recruitment and kindred matters are provided by an office Memorandum of December 1961 which we will consider more closely as they bear upon the crucial controversy.
Rule 6 gives power to Government to fix quotas for the various sources and not less than 20% of the vacancies are reserved for selected qualified members of the Subordinate Engineering Service who are category 4 in r. section Persons who are recruited in terms of rr.
5 and 6 are appointed subject to r. 17 which stipulates a spell of probation in regard to all candidates who are not already in the permanent employment of the Irrigation Branch.
We quote the rule: 17.
All persons appointed to the service who are not already in the permanent employ of the Irrigation Branch of the United Provinces Government shall be placed on probation for four years provided that such of them as have undergone training as engineer students, or have served as temporary engineers in the Irrigation Branch of the United Provinces Government, may be permitted to count the period of such training and service respectively towards this period of probation: Provided also that the Government may extend the period of probation in any case.
The Govt.
may at any time during the period of probation dispense with the service of an officer, after giving him one moth 's notice.
, G The probationer is confirmed in his appointment on his satisfactory completion of probation after passing the necessary tests.
Rule 19 relates to confirmation in the appointment of a probationer and reads thus: 19(i) A probationer shall be confirmed in his appointment when (a) he has completed the prescribed period on probation, 458 (b) he has passed all the tests prescribed in the last preceding rule, and (c) the Government are satisfied that he is fit for confirmation.
(ii) All confirmations under this rule shall be notified in the United Provinces Gazette.
Two vital factors must guide us in this interpretative exercise.
If a dated rule of colonial times is to be applied to day.
that meaning which sustains it as constitutionally valid must be preferred to another which may be appealing, going by officialese or literal sense.
We have to regard it as a case of 'new wine in old bottle '.
We must re interpret the rules to comport with articles 14 and 16 by constitutionally acceptable construction, not rigid connotation given to expressions in the vintage vocabulary of British Indian days.
We Stress this aspect because the argument urged is one of unconstitutionality of the Seniority List and of the Rules which deprive many engineers appointed in the normal course and serving for long years arbitrarily and unreasonably of the credit of such service merely because the literal rigour of old Rules requires it.
We must strive to salvage the Rules, if need be, by assigning a fresh sense, language permitting, which will fit the Rules into the "fundamental rights" mould.
We are thus thrown into the meaning of meanings, released from officially sanctified meanings.
In short, while reading the Rules we must remember the Constitution., Secondly, words themselves are but them skins of thought and once we get that, the root though which the language of the rules seeks to express, it is possible to interpret the words accordingly.
Even so, we cannot run away from the Rules as they are, though moth eaten by time and by tinkering amendments.
One of the principal groups in this forensic battle is the direct recruits selected by competitive tests by the Public Service Commission.
So we must bestow some attention on their genesis and position in the total scheme.
We reject the submission that the official Memorandum incorporating these Rules, not being expressed to have been issued in the name of the Governor, is of no legal validity.
We cannot 'bastardize ' these Rules made and published under Government authority, acted upon for two decades and recruitments made by the Public Service Commission and universally accepted as binding 'Rules Regulating Selection for Recruitment of Assistant Engineers (U. P. Service of Engineers class II) in the Various State Engineering Services in Uttar Pradesh '.
We will set out some parts of these Rules of December 7, 1961.
459 We may, at this point, crystallise the effect of the Rules read A so far, so that it may serve as a spring board for further discussion.
The battle between the parties or groups very much turns on what is the intent and effect of Rules 23, 3, 4, S, 6, 17 and 18 and their impact on r.23 read in the new context of this 1961 Rules.
We have to grapple with the crucial question of seniority which, when we hark back to r.23, in turn, revolves round the "date of the order of appointment".
The effect of probation and confirmation is also another consideration.
But r.23 sets out the guideline and the entire endeavour of both sides has been to supply an answer which gives one group a superior position as against another in the competition for seniority which apparently has promotional value when posts of Executive Engineers fall vacant We must confess that because of the absence of a coherent policy of recruitment and conditions of service and on account of frequent changes through executive instructions, apart from the mystique of officialese, it has become difficult for us to rationalise the rules and decode the principles underlying regular appointments relevant to seniority.
Even in court, as the argument proceeded.
judges and advocates had to wrestle with the rules to extract a coherent system out of them.
The High Court, on both the occasions, when challenges were made, quashed the seniority lists and directed fresh lists to be prepared.
But in the absence of clear judicial guidelines the exercise by the Executive would lead to further confusion and cavil and that is why we express our dismay at the whole situation where from stage to stage, chaos, not cosmos, has been the result.
Reference was made to an investigation by the Lal Committee and the Shukla Committee which went into the question of rationalisation of the scheme of recruitment.
classification, seniority and promotion; but as late as 1980 we are in no better position than when the moth eaten rules and instructions were made decades ago.
May be, the Reports of the Lal Committee and Shukla Committee to which reference was made need not, as is the fate of most Reports, gather dust but give light where the will to seek light exists.
This is a sad commentary on the functional failure at the Service level of the State Government which has led not merely to incessant litigations among engineers, uncertainty about their future but also discontent and disincentive vis a vis their work in the Irrigation Department.
We see nothing arbitrary in the 1961 Memorandum although in its application, we have to remember the prior rules and when the 460 two are woven into each other or, rather, when the later 1961 Memorandum is devetailed to the 1936 Rules the results that may follow will have to be ascertained with care and consistently until the ratio of the decisions of this Court in cognate situations.
What is significant to know its that Govt.
decided in 1961 to resort to direct recruitment of Assistant Engineers through competitive examinations held by the Public Service Commission.
It was, however, alive to the fact that massive appointments had already been made, in the years gone by, to the posts of Asst.
Engineers from among graduates in engineering by direct selection and later approval by the Public Service Commission apart from Thomson College graduates in engineering.
The Government was also aware of the promotional claims of those in the subordinate services.
Moreover, there were vacancies permanent and temporary and there were appointees, permanent and temporary.
The equities of the situation had to be taken Dote of because Government could not, without being guilty of cruel snobbery relegate all those, except direct recruits, from among degree holders by competitive examinations through the Public Service Commission, to a secondary status.
In this holistic view it was that the office Memorandum, dated December 7, 1961 was promulgated.
We extract it because its import and impact are decisive to an extent of the fate of the cases before us: The principles regulating selection for recruitment to permanent and temporary posts of Assistant Engineers in the various State Engineering Services have been under the consideration of Government for some time past and after thorough consideration the Governor is pleased to order that in future direct recruitment to both permanent and temporary vacancies of Assistant Engineers (Civil, Electrical and Mechanical) in the Public Works, Irrigation and Local Self Government Engineering Departments will be made on the results of competitive examinations to be conducted by the Public Service Commission.
Candidates possessing technical and other qualifications prescribed in the rules for the Uttar Pradesh Service of Engineers in the Departments concerned will be eligible to appear at the examination for that particular service.
Successful candidates in order of merit will subject to the relevant rules regarding physical fitness and other matters.
be appointed directly on probation against vacant permanent posts and those following will be appointed against temporary posts.
461 3.
All vacancies in the permanent cadre in the Irrigation and Local Self Government Engineering Departments in a particular year will be pooled and filled as follows: (a) 50 per cent by direct recruitment through competitive examination.
(b) 20 per cent by promotion from subordinate services.
(c) 30 per cent by selection from amongst temporary Assistant Engineers recruited through the Public Service Commission.
xx xx xx However, as measure of concession to the existing temporary Assistant Engineers who were recruited as temporary Assistant Engineers on the advice of the Public Service Commission prior to the introduction of this scheme for the time being distribution of vacancies in the permanent cadre of Assistant Engineers will be as follows: (a) 30 per cent by direct recruitment through competitive examination (25 per cent for the Public Works Department), (b) 20 per cent by promotion from subordinate service (25 per cent for the Public Works Department), (c) 50 per cent by selection from amongst existing temporary Assistant Engineers who were recruited as temporary Assistant Engineers through the Public Service Commission.
The distribution of vacancies in the permanent cadre in the above manner will be subject to the condition that the Governor in consultation with the Public Service Commission, may, for special reasons.
increase or decrease the percentage fixed for recruitment by selection and competitive examination in any particular year.
The candidates selected on the results of competitive examination and appointed against permanent vacancies shall be placed on probation for a period of 3 years.
However, in the case of such directly recruited candidates who have served as Assistant Engineers in a particular department in temporary capacity, continuous period of temporary service rendered as Assistant Engineer immediately before selection for permanent post of Assistant Engineer may be allowed to count towards this period of probation.
The candidates will not be required to possess one year 's practical experience, prescribed in the existing rules for recruitment of Assistant Engineers as a pre requisite qualification for 462 recruitment of Assistant Engineer in the various departments.
The period of practical experience will be covered by the period of probation.
During the probationary period candidates will be required to pass the Departmental Examination prescribed by the various departments.
Probationers may be confirmed subject to passing these examinations and their work continuing to be satisfactory.
Temporary and officiating Assistant Engineers possessing the requisite technical qualifications will be eligible to appear in the competitive examination.
The maximum age limit in the case of those working in the department with the approval of the Commission or after having been recruited by the Commission will be 40 years.
Plan and the syllabus of the competitive examination will be as shown in Appendix 'A ' enclosed with these orders.
There is more of this maze of rules and notifications but we desist from bringing them on record since they have not much bearing on the ultimate result.
We must emphasise that while temporary and permanent posts have great relevancy in regard to the career of government servants, keeping posts temporary for long, sometimes by annual renewals for several years, and denying the claims of the incumbents on the score that their posts are temporary makes no sense and strikes us as arbitrary, especially when both temporary and permanent appointees are functionally identified.
If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no rights.
Not so, if the post is, for certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtually long lived.
It is irrational to reject the claim of the 'temporary ' appointee on the nominal score of the terminology of the post.
We must also express emphatically that the principle which has received the sanction of this Court 's pronouncements is that officiating service in a post is for all practical purposes of seniority as good as service on a regular basis.
It may be permissible, within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categorise and do not admit of any ambiguity and cruelly arbitrary cut off of long years of service does not take place or there is functionally and qualitatively, substantial difference in the service rendered in the two types of posts.
463 While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, even so, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of Articles 14 and 16.
While assessing the effect of the totality of the two sets of rules placed before us, we have to make the broad approach set out above and not become prisoners of the 'official ' meaning of abstruse expressions used in the rules which themselves have frequently changed with a view to "rationalisation".
The two committees (the Lal Committee and the Shukla Committee) examined the entire matter but we have no idea, from the Government 's affidavits, as to how far the rules ave been intelligently moulded by these reports.
Right in the beginning, we have indicated that r. 23 is of spinal significance, and for purposes of seniority, one has to go by the order of appointment to the Service in a substantive capacity.
It is difficult to overlook r. 23 or slur over the expression 'substantive capacity '.
But we cannot attribute fixed connotations to expressions like 'substantive capacity ', 'service ', 'Cadre ' and the like because we find that probation even for temporary appointees is provided for in the rules which means that even temporary appointments Gan be substantive.
For, there cannot be probation for a government servant who is not to be absorbed substantively in the Service on completion thereof.
With this background, if we approach the scheme unfolded by the Office Memorandum of December 1961 superimposed on the 1936 Rules, we get three categories of Assistant Engineers and a fixation of the proportion among them.
Firstly, there are to be direct recruits through open competition held by the Public Service Commission.
50% of the posts will go to them although it is stated that the vacancies are to be "in that permanent cadre".
Secondly, the subordinate services will get 20% by promotion and thirdly, 30% will belong to the temporary Assistant Engineers recruited through the Public Service Commission in the past.
The office Memorandum makes it clear that direct recruitments will be made to "both permanent and temporary vacancies of Assistant Engineers".
But this scheme of 1961 cannot stand in isolation and has to be read as subordinate to the 1936 Rules.
After all, the 1961 Memorandum cannot override the Rules which are valid under article 313, and so must be treated as filling the gaps, not flouting the provisions.
So, read, what is the eventual conclusion? The State, in its counter affidavit, has urged that all parties must be deemed to have accepted the decision of the High Court in its judgment of October 30, quashing the seniority list of December 30, 1965.
We are inclined to proceed on that footing because, after that decision 464 was rendered, Government accepted it and went through the exercise of preparing a fresh seniority list and all the engineers concerned acquiesced in the decision and never raised any objection to the fresh preparation of a seniority list consequent upon the High Court 's decision of 1967.
That, by itself, does not give us any conclusive answer to the present question which has been agitated before us.
First of all, we must understand the two grievances brought to our notice by the appellant and the writ petitioners.
Their contention is that whether their appointments were to temporary posts or not, the long service they have put in must weigh in reckoning seniority.
Their further contention is that if the Public Service Commission has arranged the order of merit in a particular manner and if appointments have been made irregularly without reference to that order or priority, they have no objection to marginal re adjustments while arranging the seniority of the various appointees by giving effect to The order in which the Public Service Commission has made its recommendations.
It is also fairly apparent from the arguments, although not formally conceded by counsel, that officiation, from the date from which temporarily appointed Assistant Engineers have been formally approved by the Public Service Commission on reference by the State Governments must be given credit or at least from the date of Government 's acceptance.
Of the Commission 's recommendation.
There was nothing more by way of impediment in their appointments being treated as regular.
They were Assistant Engineers duly qualified.
Their appointments might have been temporary, but temporary posts and temporary appointments are within the Rules.
The Public Service Commission has since been consulted and has concurred and Government has accepted it.
Every indicium of regular appointment is thus present.
There is nothing relied on by the rivals to dislodge the reckoning of service for purposes of seniority from then on except the sole contention that the temporary Assistant Engineers are not members of the Service because their appointment is not in substantive capacity and not a permanent post.
We are free to confess that the rules, stricking divergent notes, like ill tuned cymbals, have vexed us a while.
The touchstone of valid interpretation being the Constitution and harmonisation of rules with fundamental rights being the proper path we have tried to sensitize the provisions to do equal justice under the law refusing to petrify r. 23 or the other relevant rules we have referred to Rule 4 of the 1936 Rules clearly contemplates a cadre, as covering "permanent or temporary posts".
So, a cadre takes in temporary posts.
Once we cease to be allergic to 'temporary posts ' as a component of a cadre we reach 465 the next step that a cadre is, as it were, a layer in the Service.
Rule 4 itself, while dealing with the strength of the cadre, speaks of a holder of a post in a cadre as a member of the Service may be the holder of a temporary or a permanent post.
We have two, perhaps three, types of direct recruits.
The first is the vanishing species of Roorkee University 'engineer students '.
They were directly appointed but on a temporary footing.
Massive appointments were made of other degree holders as Assistant Engineers on a temporary footing to meet the massive developmental requirements.
No one can imagine that the guaranteed posts to the brilliant Roorkee boys was temporary only or that the large number of graduates were being lured into employment for long term engineering requirements on a fleeting footing for a few months.
Surely, Government wanted to recruit them on a regular basis but hesitated to appoint them to permanent posts as such because budgetary provisions, creation of permanent posts by assessment of the total requirements and the like were not instant jobs but needed more time.
The Plan was to take these degree holders on a regular lasting basis but to make them permanent after study of the situation.
Permanency carries with it other rights than mere seniority and promotion.
Permanent posts and temporary posts are, in ordinary officialese, sharply different but in the historical context of the evolving U.P. Service of Engineers 'thin partition do their bounds divide '.
The recruitment of even temporary engineers under source (iii) of r. 5 requires consultation with the Public Service Commission.
Likewise r. 14 requires for all the three types of direct recruits, temporary included, physical fitness tests.
No person shall be appointed as a member of the service unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the service.
Before a candidate is finally approved for appointment to the service under the provisions of rules 5(i), 5(ii) or 5(iii) he shall be required to pass an examination by a Medical Board at his own expenses and shall pay a fee of Rs. 16 for such examination.
Probation, tests and confirmation are laid down under rr.
17 to 19 for "all persons appointed to the service".
We delve into these details to drive home the propinquity in status of permanent and temporary engineers in the special conspectus of facts here.
We see no reason to hold that when engineers are appointed to temporary posts but after fulfillment of all the tests for regular appointments, including consultation with the Public Service Commission, they are not appointments in a substantive capacity.
In Service terminology, 466 perhaps, eye brows may be raised when we say so, but then, we must remember that the State itself in its counter affidavit has construed r. 17 of the Rules as providing "that all persons appointed to the Service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four years" (since reduced to two years).
This means that persons who are not permanently appointed but only temporarily appointed are also placed on probation and officers are not put on probation unless they are on their way to membership in the Service on completion of probation.
That is to say, although they are temporary appointees, if their probation is completed and other formalities fulfilled, they become members of the Service.
It follows that merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission etc.
From this stand of the State Government it follows that the temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation, must be deemed to be appointed in a substantive capacity.
The only advantage for permanent appointees, i.e. Assistant Engineers who have been appointed to vacancies in the permanent cadre is what belongs to permanent public servants under various rules in different areas of official life.
We are not interested in the arithmatics given in the affidavits and counter affidavits regarding the permanent vacancies in the various categories designated as A, B and C.
What we focus on is the set of principles which must regulate the service available for computation of seniority.
In paragraph 22 of the State 's counter affidavit the break up of the vacancies available in the various years to the various categories has been set out.
Their accuracy has not been shown to be wrong and we may, perhaps, proceed on the correctness of those figures.
It is also made clear by the State that many officers belonging to the class of temporary Assistant Engineers were directly recruited before October 1958 and some of them were promoted as temporally Assistant Engineers from the Subordinate Engineers Service.
"These officers had been approved for temporary appointment by the Public Service Commission before 1958".
Likewise, for the other years, particulars have been furnished.
The Government has also clearly undertaken that the competitive seniority as between direct recruits and the temporary appointees who have been regularised may have to be taken up later on.
The State 's affidavit asserts: "It is also correct that in the appointment order it was mentioned that seniority inter se and on the list of permanent Assistant 467 Engineer of the officers will be determined later on.
" We do not consider it right or necessary to fix the seniority vis a vis the date of appointment of the various parties, as that is the administrative function of Government.
Nor do we think we should interfere with the order of the High Court setting aside the seniority list of 1969.
A fresh list has anyway to be prepared but the more meaningful judicial exercise is to lay down the correct principles and guidelines, free from discriminatory infirmities and fairly in keeping with the extant Service Rules.
The Rules are, we make it clear, those made in 1936 under the Government of India Act, 1919 and continued by force of article 313 of the Constitution.
Changes wrought by orders and instructions such as the 1961 Memorandum cannot over ride the Rules themselves but will operate subject to them in case of inconsistency.
Even an Administration of Inaction Unlimited must remember that a systematic set of Service Rules is vital not only in fulfillment of its constitutional obligation under the proviso to article 309 but also to keep the morale and to promote contentment among the Civil Services by eliminating the 'inglorious uncertainties ' about career prospects which cut at the root of planned living.
So we hope that, what with two expert committee reports slumbering in the Secretariat cells, Government will frame rules, tuned to the finer notes of article 16 and other mandates and in consonance with the realities obtaining in this and sister services, after hearing affected sides as a stroke of fair play and without being file logged for long.
We hold that r. 23 is the relevant mariner 's compass when a question of seniority arises.
Deducing therefrom we get the further guideline that the order of appointment in a substantive capacity is the significant starting point for reckoning seniority.
Substantive capacity is a flexible expression which cannot be frozen by current officialese, nor by the conditions that obtained in the remote past when the rule was framed.
On the contrary, its meaning must be consistent with article 16 and must avoid the pitfalls of arbitrariness and irrational injustice.
So viewed, we hold that the appointment need not necessarily be to a permanent post.
It is sufficient even if it is to a temporary post of long duration.
In a Department which had permanent posts and temporary posts of a quasi permanent nature, there is not much to distinguish the quality of service as between the two.
Patwardhan 's case and Chauhan 's case have primarily or in passing clarified the equal value of officiating service.
468 In Patwardhan 's case, Chandrachud, J. Observed in the course of the discussion "There is no universal rule, either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both.
" Later, the learned Judge observed in the same strain: The fact that the permanent strength of the cadre was determined on the basis of permanent posts at any given time, as for example when the Bombay Government passed resolutions on March 22, 1937 and April 13, 1945 cannot detract, from the position that even temporary posts of Deputy Engineers were treated as additions, though temporary, to Class IV cadre.
The Court, in that case, also held that confirmation cannot be the sole touchstone of seniority as that will be indefensible: Confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies.
A glaring instance widely known in a part of our country is of a distinguished member of the judiciary who was confirmed as District Judge years after he was confirmed as a Judge of the High Court.
It is on the record of these writ petitions that officiating Deputy Engineers were not confirmed even though substantive vacancies were available in which they could have been confirmed.
It shows that confirmation does not have to conform to any set rules and whether an employee should be confirmed or not depends on the sweet will and pleasure of the government.
In Chauhan 's case this Court observed: "Seniority, normally, is measured by length of continuous officiating service the actual is easily accepted as the legal.
" Of course, an appointee to a permanent post acquires certain rights which one who fills a temporary post cannot claim.
Nevertheless, when the post is not purely temporary or ad hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one who by accident of circumstance or for a fugitive tenure occupies the temporary post for a fleeting term.
We must make this distinction not only to be truthful to the facts of Service life but also to do justice to those who have otherwise rendered long and satisfactory work in the Irrigation Department.
In short, while we do make a distinction between permanent and temporary posts, when we come to the dimension of mere seniority, we whittle down the difference considerably.
A post of short duration, say of a few months, is different from another which is terminologically temporary but is kept on for ten or more years under the head 'temporary ' for budgetary or other technical reasons.
Those who are appointed 469 and hold temporary posts of the latter category are also members of the Service provided they have been appointed substantively to that temporary post.
What, in the context, is a substantive capacity vis a vis an appointment to a post ? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part B ' or constituent or relating to what is essential".
We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity".
What is independent in a substantial measure may reasonably be described as substantive.
Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State.
Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post.
To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contra distinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.
Once we understand 'substantive capacity ' in the above sense, we may be able to rationalise the situation.
If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity.
Government will ascertain from this angle whether the capacity in which posts have been held was substantive or temporary.
If it is not, the further point to notice is as to whether the appointments are regular and not in violation of any rule, whether the Public Service Commission 's approval has been obtained and whether probation, medical fitness etc., are complete.
Once these formalities are complete the incumbants can be taken as holding posts in substantive capacities and the entire efficiating service can be considered for seniority.
For other purposes they may remain temporary.
It may well be that another interpretation may make r. 23 vulnerable.
If a public servant serves for a decade with distinction in a post known to be not a casual vacancy but a regular post, experimentally or otherwise kept as temporary under the time honoured classification, can it be that his long officiation turns to ashes like a Dead Sea fruit because of a label and his counterpart equal in all 470 functional respects but with ten years less of service steals a march.
Over him because his recruitment is to a permanent vacancy? We cannot anathematize officiation unless there are reasonable differentiations and limitations.
We take the view that the G.O. of December 1961, in so far as it fixes the proportion of permanent vacancies to be filled from the various sources, has statutory force being under r. 6.
So much so.
the various.
groups can claim permanency only in terms of that proportion although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority.
The normal rule consistent with equity is that officiating service, even before confirmation in service has relevancy to seniority if eventually no infirmities in the way of confirmation exist.
We see nothing in the scheme of the Rules contrary to that principle.
Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other purposes have been regularised and are fit to be absorbed into permanent posts as and when they are vacant.
We, therefore, direct that a seniority list be prepared in the light of the principles laid down by us.
It is not for the court to find out how many among the temporary Assistant Engineers are eligible for permanency, how many have cleared all the requirements regarding regular appointments even in temporary vacancies in short, how many must be deemed to have been appointed in a substantive vacancy though temporary.
That will be worked but by the State in the light of what we have laid down.
We do not agree with the High Court in the partly misleading reasoning it has adopted, but do concur in the conclusion that the seniority list deserves to be set aside.
We do so in partial allowance of the appeals and dismiss the writ petitions.
Parties will be 'heard ' by Government through written or oral representations as it chooses, when it prepares a seniority list but the principles we have put down shall govern.
The parties will bear their costs through out.
P.B.R. Appeals partly allowed.
Petitions dismissed.

dataset_name: IN-Abs

summary/full:
Under rule 3(b) of the U. P. Service of Engineers (Junior and Senior Scales) irrigation Branch Rules a member of the service means a government servant appointed in a substantive capacity under the provisions of the rules to a post in the cadre of the service.
Rule 4 empowers the State Government to increase the cadre by creating permanent or temporary posts from time to time according to the exigencies.
Rules S and 6 contemplate recruitment (i) by direct appointment from amongst engineer students of the Thomson Civil Engineering College, Roorkee, (ii) by direct appointment, (iii) by appointment of officers in the temporary service of the United Provinces, Public Works Department (Irrigation Branch), (the selection in all these three categories was to be after consulting a permanent Board of Selection) and (iv) by promotion of members of the Subordinate Engineering Service, who have, in the opinion of the Government, shown exceptional merit.
The proviso to rule S states that it would not be necessary to consult the Commission in the case of appointment of a temporary officer to a permanent vacancy, if he has already been appointed to a temporary post in the cadre of service after consultation with the Commission.
In 1950 recruitment through Thomson College was stopped and in 1961 direct recruitment was made through the Public Service Commission.
Rule 6 empowers the Government to fill quotas for members of the Subordinate Engineering Service.
Rule 17 stipulates a period of probation in regard to all candidates who were not in the permanent employment of the Irrigation Branch.
Rule 19 provides the mode of confirmation of a probationer in his appointment.
Rule 23 regulating the inter se seniority of the officers states that seniority in the ser ice shall be determined according to the date of the order of appointment to it.
In 1948 by combining class I and class II officers into one service the Government constituted the U. P. Service of Engineers (Junior and Senior Scales) but since the rules regulating their recruitment, conditions and classifications could not be made, the Government followed the 1936 Rules which were modified from time to time by Government orders.
The High Court struck down the seniority list of engineers prepared by the State Government in 1965 and gave directions to the Government to re determine the seniority in accordance with Rules 23 of the Rules.
Purporting to act on these directions a fresh seniority list was drawn up by the Government in May, 1969 but that too was struck down by the High Court.
450 In appeal to this Court it was contended that it was not correct to say that the temporary Assistant Engineers were not members of the service on the ground that their appointment was not in a substantive capacity in permanent posts since they had fulfilled all the requirements of the rules for being appointed on a regular basis viz. possessing the requisite qualifications, selection by the State Service Commission etc.
irrespective of whether their appointments were to temporary posts or not, the long service they had put in must weigh in reckoning the seniority.
Allowing the appeal in part ^ HELD: The G. O. Of December 1961 in so far as it fixes the proportion of permanent vacancies to be filled from the various sources had statutory force being under rule 6.
So much so, the various groups can claim permanency only in terms of that proportion, although not being holder of a permanent post neither debars membership of the Service nor earning the benefit of officiating service for purposes of seniority.
[470B C] While temporary and permanent posts have great relevancy in regard to the career of the government servants, keeping posts temporary for long, sometimes by annual renewals for several years and denying the claims of the incumbents on the score that their posts are temporary, makes no sense and is arbitrary especially when both temporary and permanent appointees are functionally identified.
If, in the normal course, a post is temporary in the real sense and the appointee knows that his tenure cannot exceed the post in longevity, there cannot be anything unfair or capricious in clothing him with no right.
Not so, if the post is, for certain departmental or like purposes, declared temporary, but it is within the ken of both the government and the appointee that the temporary posts are virtually long lived.
It is irrational to reject the claim of the temporary appointee on the nominal score of the terminology of tho post.
[462 D] Officiating service in a post is for all practical purposes of seniority as good as service on a regular basis.
It may be permissible, within limits, for government to ignore officiating service and count only regular service when claims of seniority come before it, provided the rules in that regard are clear and categoric and do not admit of any ambiguity and an arbitrary cut off of long years of service does not take place.
While rules regulating conditions of service are within the executive power of the State or its legislative power under proviso to Article 309, such rules have to be reasonable, fair and not grossly unjust if they are to survive the test of articles 14 and 16.
[462 G H] For purposes of seniority, one has to go by the order of appointment to the Service in a substantive capacity.
But no fixed connotations can be attributed to expressions like 'substantive capacity ', 'service ', 'cadre ' and the like because probation even for temporary appointees is provided for in the rules which means that even temporary appointments can be substantive.
For there cannot be probation for a government servant who is not to be absolved substantively in the Ser ice on completion thereof.
Permanency carries with it other rights than mere seniority and promotion.
Permanent posts and temporary posts are in official terminology sharply different but in the historical context of the U.P. service of Engineers there is no difference because recruitment of even temporary engineers requires consultation with the Public Service Commission, undergoing physical fitness tests, probation and 451 departmental tests.
The temporary appointees, whose appointments have received the approval of the Public Service Commission and who have run out the two years of probation must be deemed to be appointed in a substantive capacity.
[465 D E] It is not correct to say that when Engineers are appointed to temporary posts but after fulfilling all the tests for regular appointment they are not appointed in a substantive capacity.
It was concluded by the State in its counter affidavit that all the persons appointed to the service who are not already in the permanent employment of the Irrigation Department shall be placed on probation for four years (since reduced to two years), which means that persons who were not permanently appointed but only temporarily appointed are also placed on probation and officer are not put on probation unless they arc on their way to membership in the Service on completion of probation.
That is to say although they are temporary appointees, if their probation was completed and other formalities fulfilled, they become members of the service.
Merely because the person is a temporary appointee it cannot be said that he is not substantively appointed if he fulfils the necessary conditions for regular appointment such as probation and consultation with the Public Service Commission.
[466 A D] Rule 23 is the relevant rule when a question of seniority arises.
The order of appointment in a substantive capacity is the significant starting point for reckoning seniority.
The appointment in a substantive capacity need not necessarily be to a permanent post.
It is sufficient even if it is to a temporary post of long duration.
[467 E G] An appointee to a permanent post acquires certain rights which one who fills a temporary post cannot claim.
Nevertheless, when the post is not purely temporary or ad hoc or of short duration or of an adventitious nature, the holder of such temporary post cannot be degraded to the position of one, who, by accident of circumstance or for a fugitive tenure occupies the temporary post for a fleeting term.
[468 F] A person is said to hold a post in a substantive capacity when he holds it for an indefinite period, especially of long duration in contradistinction to a person who holds it for a definite or a temporary period or holds it on probation subject to confirmation.
If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity.
[469 D E]