UP Awas Evam Vikas Parishad's Function Does Not Include Fixing its Employees' Service Conditions : Supreme Court

The Supreme Court has reiterated and held that "where an enactment requires to do a certain thing in a certain way, the thing must be done in that way and in no other manner" in the judgment of State of U.P. & Ors. vs. Virendra Kumar & Ors. A bench of Justices Sanjay Kishan Kaul, Abhay S. Oka and Vikram Nath have delivered the judgment which has been authored by Justice Abhay S. Oka. The brief facts of the case were that under Section 3 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (for short 'the 1965 Act'), Uttar Pradesh Avas Evam Vikas Parishad (for short 'the Board') was established. The basic object of the establishment of the Board was framing and executing housing and improvement schemes in the State of Uttar Pradesh. The larger issue that was up for consideration before the bench through a reference made by a division bench of the Supreme Court in State of U.P. vs. Preetam Singh & Ors. 2014 (15) SCC 774 was whether the act of determining service conditions of the employees and officers of the Board is one of the statutory functions of the Board. First, let's have a look at the three referral questions. THREE REFERRAL QUESTIONS The three questions up for consideration before the three judge bench were as follows: (1) Whether the judgment of this Court in State if U.P. vs. Preetam Singh & Ors. 2014 (15) SCC 774 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? The court set out to answer the above questions by engaging itself in a discussion on three key aspects. POWER TO DETERMINE THE CONDITIONS OF SERVICE OF THE OFFICERS AND SERVANTS OF THE BOARD The judgment starts by first laying out the bare provisions from the legislation. It states that the statute nowhere grants the state government the explicit power to determine conditions of service of the officers and servants. It clearly distinguishes between the power of the state government to control the recruitment process vis-a-vis the power of the Board to determine the conditions of service of the officers and the servants. It says, "26…Subsection (1) of Section 8 does not provide that the State Government shall have the power to determine the conditions of service of officers and employees of the Board. The power to control the appointment and the power to put restrictions are distinct and different from the power to determine the service conditions of the officers and servants of the Board. The control of the State Government and the power to impose restrictions as provided in subsection (1) of Section 8 will extend to the creation of posts of officers and servants of the Board. The control can be exercised by directing the creation of different categories of posts. The control can be also exercised by determining the number of posts of different categories. However, the court then points to a provision within the statute that grants the State government the power to make Rules. In this context it points to Section 94(2)(nn) from the 1965 Act which reads as follows: Clause (nn) of subsection (2) of Section 94 reads thus : "94. Power to make Rules. (1) ... ... ... ... (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for (nn) any matter for which regulation may be made by the Board under Section 95;" The above clause (nn) of subsection (2) of Section 94 clearly confers power on the State Government to frame Rules in respect of any matter for which regulations can be framed by the Board. On the other hand, the court says, "Clause (f) of subsection (1) of Section 95 specifically empowers the Board to frame Regulations governing conditions of service of officers and servants of the Board. The reason is that the power to determine...

UP Awas Evam Vikas Parishad's Function Does Not Include Fixing its Employees' Service Conditions : Supreme Court

Anurag Tiwary

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