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SC held that the judgment in Preetam Singh’s case needs reconsideration – directed these cases

State of U.P. & Ors.  V. Virendra Kumar & Ors., Special Leave Petition(C)Nos.4802-4803 Of 2019 – February 10, 2020.

CORAM: A two judge bench comprising of Justice ASHOK BHUSHAN and Justice M.R. SHAH

In this case learned Advocate General of State of U.P appeared for the State of U.P. Shri Nikhil Majithia, learned counsel had appeared for the respondents. The counsels for the parties have addressed their submissions only on the question as to whether judgment of this Court in State of U.P  v  Preetam Singh, (2014)15 SCC 744, requires reference to a larger bench or not. This court made reference to the above case.

Learned Advocate-General submitted that the conditions of service employee do not constitute the functions of the Vikas Parishad and the directions issued could not have been issued by the State Government are the views of this court without considering the relevant statutory provisions of the act. The appointment should be made under the control of State Government. Thus the state can issue special or general orders with regard to the appointment. Section 92 of the Act provides control of the State Government on Board and other local authority. Alos Section 94(2)(nn) empowers the state to make rules on any matter. In this regulations can be made by the board under Section 95. It is further submitted that Entry 41 of List II of the VII Schedule of the Constitution empowers the State Legislature to frame law on public services and state has the executive power on all subjects where it has legislative powers. Also the functions of the Board under Section 15 are very wide and there are other functions entrusted to the Board I the provisions of the Act. It is further submitted that the state while implementing the 6th Pay Commission’s Report had implemented with regard to the employees of Board by giving actual benefits.

The counsel for the respondents submitted that the answer to the issue regarding Parishad was rightly answered by the court in Preetam Singh case. The counsel submitted that the directions under Section 92 shall relate to functions of the Board as mentioned in Section 15. The counsel for the respondent also submitted that the state has right to issue directions only with respect to functions assigned to the Board under Section 15 of the said Act. The State has the right to issue directions only to the Vikas Parishad under Section 15 of the Act.

After undertaking the arguments of the counsel the court observed that following records. From the Preetam Singh case this court extracted Section 15 of the Act and held that the conditions of the service employees are not the function of the Parishad. Chapter III of the said Act deals with the functions and powers of the Board. The functions of the Board are not exhaustive and have to be read with the functions of the Board as per the provisions of the Act. Section 8 of the Act indicates that the appointment of officers and servants is also one of the functions of the Board. In case of appointment under Section 8(2), the terms and conditions are laid down along with the agreement. This court also referred Section 92 of the Act which deals with the control of the State Government over the Board and other local authorities.

From these views this court considered that the opinion of the Bench in Preetam Singh case do not constitute the functions of the Vikas Parishad according to the provisions of Sections 8, 92, 95(1)(f). The board has the power to frame regulations regarding conditions of service of officers and servants of the Board, the State Government shall have power to make rules on the above subject. The State Legislature has legislative competence under Entry 41 List 5 of the VII Schedule of the Constitution. Also the State Legislature has the executive power to issue orders by virtue of Article 162 of the Constitution. The judgment of a constitutional bench in Rai Sahib Ram Jawaya Kapur and others vs. The State of Punjab,AIR 1955 SC 549, has examined Article 162 of the Constitution. This court also referred the judgment of A.B. Krishna and others vs. State of Karnataka and others, (1998) 3 SCC 495.

Thus from these observations the court viewed that the judgment in Preetam Singh needs reconsideration. They formulated the following questions. “(1) Whether the judgment of this Court in Preetam Singh’s case laying down that conditions of service of officers and employees do not constitute the functions of the U.P. Avas Evam Vikas Parishad lays down the correct law more so when the judgment does not refer to provisions of Sections 8, 92, 94(2)(nn)of the 1965 Act ?(2) Whether the view expressed in Preetam Singh’s judgment that functions of the U.P. Avas Evam Vikas Parishad are only the specific functions enumerated in Section 15 of 1965 Act which does not include the service conditions of employees of the Board lays down the correct law ? Whereas the functions of the Board referred to in other provisions of Act, Rules and Regulations as has been expressly provided in Section 15(1) by use of expression “subject to the provisions of this Act and the Rules and Regulations” shall also be functions of the Board which induces service conditions of officers and employees as per Section 95(1)(f) of the 1965 Act.(3) Whether the State Government had no jurisdiction to issue directions regarding service conditions of officers and employees of the U.P. Avas Evam Vikas Parishad under the provisions of the 1965 Act and 1975 Act and all other enabling powers with the State Government?”

Thus this court directed these cases to be presented before the CJI for constitution of a larger Bench. Also the CJI is requested to form a larger Bench on an earlier date.

– PRIYADHARSHINI R

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