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Government of Andhra Pradesh Vs. A.P. State Co-operative

Societies Secretaries and Employees Union and ors.

LegalCrystal Citation : legalcrystal.com/424216

Court : Andhra Pradesh

Decided On : Jan-20-2004

Reported in : 2004(2)ALD273; 2004(1)ALT593

Judge : B. Sudershan Reddy and ;K.C. Bhanu, JJ.

Acts : Andhra Pradesh Co-operative Societies Act, 1964 - Secdtions

116C; Andhra Pradesh Co-operative Societies (Amendment) Act, 2001

Appeal No. : WA Nos. 32 and 413 of 2003 and WP No. 8522 of 2003

Appellant : Government of Andhra Pradesh

Respondent : A.P. State Co-operative Societies Secretaries and

Employees Union and ors.

Advocate for Def. : S. Ramchandra Rao for K.R. Prabhakar, P.

Srinivasulu, S.A. Chari, S. Prasad Rao, T. Amarnath Goud

Advocate for Pet/Ap. : D. Prakash Reddy, Ramesh Ranganathan, S.

Ramachandra Rao for K.R. Prabhakar

Judgement :

B. Sudershan Reddy, J.

1. These matters being interlined are disposed of together by a

common judgment.

W.A. Nos. 32 and 413 of 2003

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2. These writ appeals are preferred against the judgment rendered by
a learned Single Judge of this Court in WP.No.3706 of 2002, dated 11-9-
2002, since reported in A.P. State Co-operative Societies, Secretaries
and Employees Union v. Government of Andhra Pradesh, :
2003(1)ALD197 , whereunder the learned Judge allowed the said writ
petition filed by the A.P. State Co-operative Societies Secretaries and
Employees Union and accordingly declared that the appellants herein
have no right to recover the salaries paid to the members of the
petitioner-Union pursuant to the Memo dated 14-10-1991 till 16-10-
2001.

3. In order to consider whether the judgment under appeal suffers from

any infirmity requiring our interference, the relevant facts may have to
be noticed :

4. For the sake of convenience, we shall refer to the parties as arrayed

in the writ petition.

5. The writ petitioner-Union represents the Paid Secretaries working in

different Primary Agricultural Co-operative Societies (PACS) in the State
of Andhra Pradesh.

The present writ petitions has been filed with a prayer:

'...... .the High Court will be pleased to issue an appropriate writ, order
or direction, especially one in the nature of writ of mandamus directing
the respondents not to apply in any manner the provisions of the
Andhra Pradesh Co-operative Societies (Second Amendment) Act, 2001
(22/2001) to actions already taken prior to the amendment Act and
completed by 25-4-2001 as the Act has no retrospective effect and not
to take any coercive steps by way of recoveries or refixation of salaries
and pass such other order or orders as are deemed fit and proper in
the circumstances of the case.'

6. During the year 1973, the Registrar of Co-operative Societies in

exercise of the powers under Section 116-A of the Andhra Pradesh Co-
operative Societies Act, 1964 (for short 'the Act') has constituted a
common cadre in respect of the Paid Secretaries working in the PACS
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with a view to provide qualified Secretaries to the said Societies. It is
the case of the writ petitioner-Union that under the 'half-a-million job'
programme of the Central Government, about 2000 Secretaries were
appointed in the year 1973 on a consolidated pay of Rs. 150/- per
month. All the existing Societies were reorganized in the year 1977
under the viability programme and about 15000 existing Societies
were scaled down to 6562 Societies. After introduction of 'Single
Window Scheme' the existing 6562 PACS were reduced to 4562 viable
Societies in the year 1987.

7. The Andhra Pradesh State Legislature by way of amendment to the

Act introduced Section 116-AA by which the common cadre for all
categories of employees other than those specified in Section 116-A of
the Act, constituted before the commencement of the Andhra Pradesh
Co-operative Societies (Amendment) Act, 1985 and existing at such
commencement, were abolished. The Registrar was accordingly
empowered to allot, subject to such rules as may be made in that
behalf, the employees included in the cadre so abolished to Primary
Agricultural Cooperative Societies.

8. The constitutional validity of Section 116-AA of the Act has been

challenged in WP No. 15506 of 1989 and this Court by its order dated
10-10-1991 having upheld the constitutional validity of the said
provisions directed the State Government to evolve a scheme for
providing a suitable post in case of retrenchment of any of those
petitioners who challenged the constitutional validity after they are
allotted to various PACS.

9. It is unnecessary to notice the details relating to the settlement

between the writ petitioner-Union and the State Government resulting
in issuance of Memo No. 5661/Coop.III/2/91-l, dated 14-10-1991
whereunder the Government inter alia agreed, in principle, to revise
the pay scales of Paid Secretaries so as to bring them on par with the
Supervisor-V Cadre of the District Co-operative Central Banks together
with Dearness Allowance and other allowances with effect from 1-1-
1991 to be paid by the concerned PACS as per the norms prescribed by
the Registrar. It has been decided to abolish the Cadre fund and to

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collect the dues, if any, and to create a Corpus Fund by raising
resources to enable prompt payment of salaries particularly by the
financially weak and vulnerable societies. Mutual transfers of Paid
Secretaries were accordingly permitted.

10. Within a very short span of time, the Commissioner for Co-
operation and Registrar of Co-operative Societies vide proceedings
dated 14-2-1992 issued appropriate directions to all the concerned to
await further instructions in respect of implementation of the decision
of the Government contained in the said Memo dated 14-10-1991 on
the ground that the Government have been working out the modalities
to create a Corpus Fund to meet the financial requirements in the
process of implementation of the said Memo.

11. The writ petitioner-Union challenged the validity of the said

proceedings dated 14-2-1992 in WP No. 16558 of 1992 and Batch. A
Division Bench of this Court by its order dated 13-8-1996 disposed of
the said batch of writ petitions directing the State Government to
constitute a Committee to consider the issue relating to pay scales of
Paid Secretaries and their allotment to PACS after taking into
consideration the views of the representatives of the A.P. State Co-
operative Bank, District Cooperative Central Banks, Primary
Agricultural Co-operative Societies as well as the members of the writ
petitioner-Union in accordance with the provisions of the Act and the
rules made thereunder, within six months from the date of receipt of
the order.

12. The members of the writ petitioner-Union at all points of time

insisted that the posts of Paid Secretaries held by them are equivalent
to the posts of category-V Supervisors in the District Co-operative
Central Banks. This assertion of the members of the writ petitioner-
Union is obviously based upon the Government Memo dated 14-10-
1991 referred to hereinabove.

13. The Registrar of Co-operative Societies by proceedings dated 18-6-

1997 introduced the revision of pay scales so far as the employees
working in the District Co-operative Central Banks in the State of

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Andhra Pradesh are concerned with effect from 1-4-1996 under the
settlement dated 16-6-1997 purported to have been entered into with
the employees of the District Co-operative Central Banks. The scales
were accordingly revised by the District Co-operative Central Banks in
the State under the permission granted by the Registrar of Co-
operative Societies. However, the said benefit was not extended so far
as the Paid Secretaries are concerned. The Registrar by the
proceedings dated 25-9-1997 directed all the District Co-operative
Officers to recover, from the salaries of the members of the petitioner-
Union, the amounts, which were earlier paid to them on par with
category-V Supervisors of the District Co-operative Central Banks.

14. The case of the State is that the posts held by the members of the
writ petitioner-Union as Paid Secretaries in various PACS are not
equivalent to the posts of Supervisors of District Co-operative Central
Banks. The pay scales of the employees of the District Co-operative
Central Banks were approved by the competent authority in exercise of
the power vested under Section 116-C of the Act.The sum and
substance of the case of the State is that unless the pay scales of Paid
Secretaries of PACS are approved by the competent authority as per
Section 116-C of the Act and unless such a decision has been taken by
the Registrar fixing the pay scales, no such pay scales can be drawn by
them from the concerned Societies equating themselves on par with
category-V Supervisors of District Co-operative Central Banks.

15. Be it as it may, in pursuance of the order of this Court in W.P. No.

16558 of 1992 and Batch, dated 13-8-1996 the Government
constituted a Committee of Officials vide G.O. Ms. No. 1338. dated 23-
12-1996 to study the whole issue and make recommendations after
ascertaining the views of all the concerned. The Committee submitted
its report to the Government. The Government having examined the
report of the Committee of the Officials referred the matter to the
Cabinet Sub-Committee constituted for further examination of the
issue. The Cabinet Sub-Committee made its recommendations. The
Government having regard to the magnitude and the complexity of the
problem referred the matter for further examination to another Cabinet
Sub-Committee constituted by the Government vide G.O. Ms. No. 71.
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Agriculture and Cooperation Department, dated 25-3-2000 to go into
the general working of Co-operatives and suggest measures to make
the Cooperatives viable, self-reliant, effective and accountable to
members. The Cabinet Sub-Committee having studied the issue and
having made in depth analysis of the problem formulated its
recommendations and submitted a comprehensive report to the
Government. The Government having taken all the relevant factors
into consideration including various reports issued G.O. Ms. No. 314,
Agriculture and Co-operation (Co-op.III) Departmerit, dated 26-12-2000
ultimately cancelling the Memo dated 14-10-1991 earlier issued by the
Government and referred to hereinabove. The said G.O., issued by the
Government is self-explanatory.

16. The Government having taken all the relevant facts including
various orders passed by this Court from time to time at the instance of
the writ petitioner-Union and having taken into account the unbearable
burden that may be imposed upon the Primary Agricultural Co-
operative Credit Societies on account of fixing pay scales of the Paid
Secretaries and considering the resources available with the Societies
and all other relevant factors including the interest of the employees
came to the conclusion that the matter should be left to the Societies
to exercise their power under Section 116-C of the Act for the purpose
of fixation of pay scales of Paid Secretaries. The Government thus
decided that the matter of fixing up of strength of the establishment,
staffing pattern and scales of pay and othr allowances of employees
should be left to be decided by the PACS with the prior approval of the
Registrar of Societies as laid down under the provisions of Section 116-
C of the Act and the rules made thereunder.

17. The writ petitioner-Union filed W.P. No. 21488 of 2000 and Batch
challenging the validity of said G.O. Ms. No. 314, dated 26-12-2000.
The operation of the said G.O. was kept under suspension under the
interim order dated 3-1-2001 passed by a learned Single Judge of this
Court, against which W.A. Nos. 424 and 425 of 2001 were filed by the
State. A Division Bench of this Court disposed of the said writ appeals
as well as writ petitions vide its judgment dated 16th October, 2001
upholding the validity of the said G.O. The Special Leave Petitions filed
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against the Judgment in the said writ appeals were rejected by the
Supreme Court.

18. In A.P. State Co-operative Societies, Secretaries and Employees

Association, Nizamabad v. State of A.P., : 2002(1)ALD271 (DB), the
constitutional validity of Section 116-AA as well as Section 116-C of the
Act had fallen for consideration. This Court speaking through S.B.
Sinha, CJ (as he then was) observed:

'The conditions of service of different persons working under different

Co-operative Societies may vary. Each Co-operative Society is entitled
to lay down its own service conditions. The only statutory requirement
is that same must be approved by the Registrar of Co-operative
Societies in terms of Rule 72 of the A.P. Co-operative Societies Rules.
Only because, there is a possibility of different Co-operative Societies
fixing different remunerations for their Paid Secretaries in terms of
Section 116-AA, it would not attract Article 14 of the Constitution. Each
Co-operative Society must fix its staffing pattern and also fix the
remuneration payable to employees in such a manner so that the
provisions of Section 116-C are not violated. The employees of each
Co-operative Society would form a different class and in that view of
the matter in our opinion, even no discrimination can be alleged, nor
Article 14 of the Constitution would be violated thereby...... We
therefore, are of the opinion that no case has been made out for
holding that the provisions of Sections 116-AA and 116-C of the Act are
unconstitutional.'

19. The writ petitioner-Union once again filed W.P. No. 28473 of 1997
challenging the constitutional validity of Section 116-C as amended by
Amendment Act 22 of 2001. In the said writ petition they have prayed
to issue a writ of mandamus declaring the action of the authorities in
not applying the revision of pay scales with effect from 1-4-1996 on
par with the Category-V Supervisors of the District Co-operative Central
Banks and applying the earlier scales of pay to the members of the
petitioner union as arbitrary, illegal, unjust and against the principles
of natural justice. A Division Bench of this Court, to which one of us is a
member (B.Sudershan Reddy, J), dismissed the said writ petition by its

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order dated 12-7-2002, as reported in A.P. State Co-operative Societies
Secretaries and Employees Union v. Government of A.P., :
2002(4)ALD527 (DB), upholding the constitutional validity of Section
116-C as well as Section 116-AA of the Act. This Court held that the
said provisions cannot be said to be irrational, nor they can be
characterised as discriminatory in their nature. The Court accordingly
declared that the members of the writ petitioner-Union are not entitled
for pay sacles/revised pay scales on par with category-V Supervisors in
the District Cooperative Central Banks and they cannot equate
themselves with any other employees including Category-V
Supervisors of the District Co-operative Central Banks. The Paid
Secretaries are the employees of the concerned society and the
society with the prior approval of the Registrar is empowered and
entitled to fix the staffing pattern, qualifications, pay scales and other
allowances for its employees subject to the condition that the
expenditure towards pay and allowances of the employees shall not
exceed two per cent of the working capital or thirty per cent of the
gross profit, in terms of actuals in a year, whichever is less.

20. The present writ petition has been filed with a prayer, which we
have already noticed, on the basis that the respondents were taking
steps to reopen the entire issue and to recover the excess amount of
salary drawn by the Paid Secretaries under the Memo dated 14-10-
1991. It was inter alia contended before the learned Single Judge as
well as before us that Act 22 of 2001 making amendments to Section
116-C of the Act has no retrospective effect and, therefore, the
respondents cannot be permitted to apply the said provision in order to
recover the salaries already paid to the Paid Secretaries working in
various societies in the State of Andhra Pradesh.

21. We must confess that in spite of our best efforts we were unable to
discern any specific cause of action for filing the present writ petition.
The averments made in the affidavit filed in support of the writ petition
are totally vague and indefinite. Some of the averments made are even
unintelligible. The prayer made itself is somewhat unintelligible. The
writ petitioner-Union seeks some sort of a general declaration
prohibiting the respondents-authorities from taking action under
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Section 116-C of the Act.

22. The learned Additional Advocates General, Sri D. Prakash Reddy

and Sri Ramesh Ranganathan, contended that the judgment of the
learned Single Judge runs counter to both the Division Bench
Judgments referred to hereinabove. They have contended that the
members of the writ petitioner-Union have drawn amounts for which
they were not entitled under the interim orders granted by this Court
and since the main writ petitions themselves were dismissed, the
Societies concerned would certainly be entitled to take steps for
recovery of the amounts drawn in excess of the entitlement from the
members of the writ petitioner-Union.

23. Sri S.Ramachandra Rao, learned Senior Counsel appearing on

behalf of the writ petitioner-Union, contended that the members of the
writ petitioner-Union were paid salaries on par with Category-V
employees of District Co-operative Central Banks under Memo dated
14-10-1991, which remained in force until the Government issued G.O.
Ms. No. 314, dated 26-12-2000 cancelling the said Memo dated 14-10-
1991 and such payments made cannot be recovered as it were made
under a lawful order of the Government. It was also contended that the
Paid Secretaries would become employees of the Societies concerned
only after proper allotment is made. Irrespective of the merits and
legality of pay scales, the payments made in pursuance of the orders
of this Court, cannot be recovered since the drawal of such pay scales
and amounts by the members of the writ petitioner-Union was not on
account of any fraud or misrepresentation made by them. Reliance has
been placed upon the decisions of the Supreme Court in Stale of
Haryana v. Haryana Civil Secretariat Personal Staff Association, :
[2002]SUPP1SCR118 and Shramik Uttarsh Sabha v. Raymond Woolen
Mills Ltd., : (1995)IILLJ301SC , in this regard.

24. A Division Bench of this Court in W.A. Nos. 424 and 425 of 2001
and W.P. Nos. 21488 of 2000 and Batch in clear and categorical terms
held that the Primary Agricultural Co-operative Societies being the pay-
masters to the Paid Secretaries are not the parties to the Memorandum
of Understanding reached between the writ petitioner-Union and the

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Government resulting in issuance of Memo dated 14-10-1991. They
had not been given an opportunity of being heard. 'Such a purported
understanding - whether termed as an agreement or not, was ex facie
not enforceable against the District Co-operative Central Banks and
Primary Agricultural Co-operative Societies.' The Division Bench further
took the view that the Primary Agricultural Co-operative Societies and
District Co-operative Central Banks are autonomous body corporate
under the Act. In terms of the provisions of the Act, the State
Government has no right to enter into any Memorandum of
Understanding with the Paid Secretaries of PACS. The Division Bench
having noted that the State Government does not bear the grant-in-aid
to the Co-operative Societies towards the salaries of the paid
Secretaries held that it could not have entered into such an
understanding and agreement dated 14-10-1991 without any financial
commitment by the State resulting in burden on the Societies and that
too without any notice to them. It is for the Co-operative Societies to fix
the service conditions including the pay scales of the employees and
the Government has no power to fix the same. This Court further
observed:

'The history of litigation, in the instant case, shows that payments to

the Paid Secretaries at par with Supervisor Category-V of District Co-
operative Central Bank, as also the revised pay scales, were being
made only pursuant to the orders of this Court and not by reason of
any policy decision, except the said purported understanding dated 14-
10-1991. The writ petitioners, therefore, cannot be heard to say that
there would be violation of principles of natural justice if they are
deprived from the said benefit.'

25. The Division Bench further found that the said agreement dated
14-10-1991 was void and inoperative so far as the Cooperative
Societies are concerned. The Division Bench accordingly upheld G.O.
Ms. No. 314, dated 26-12-2000 whereunder the Memo dated 14-10-
1991 has been cancelled. The whole of the claim of the writ petitioner-
Union is based upon the Memo dated 14-10-1991 which remained in
operation for a brief period since the same has been kept in abeyance
by the Commissioner for Cooperation and Registrar of Co-operative
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Societies by proceedings dated 14-2-1992. Thereafter, the members of
the writ petitioner-Union, if at all, derived the benefit under the said
Memo in view of the interim orders granted by this Court from time to
time. In none of the decisions, this Court expressly upheld the validity
of the Government Memo dated 14-10-1991. The members of the writ
petitioner-Union have fixed their salaries for themselves under the
Memo dated 14-10-1991, which was ultimately cancelled by the
Government in G.O. Ms. No. 314, dated 26-12-2000, which has been
upheld by this Court in the manner referred to hereinabove.

26. We have already noticed that this Court in more than one decision
upheld the constitutional validity of Section 116-AA as well as Section
116-C of the Act. Even prior to the amendment of Section 116-C on 25-
4-2001, the said Section as per Act 21 of 1985, which came into effect
from 22-4-1985, provided that a society shall have the power to fix the
staffing pattern, qualifications, pay scales and other allowances for its
employees with prior approval of the Registrar of Co-operative
Societies and the scales of pay as so approved by the Registrar of Co-
operative Societies are required to be implemented.

27. It is thus clear that the very basis on which the members of the writ
petitioner-Union assert their claim itself has been declared void and
inoperative while upholding the G.O. Ms. No. 314, dated 26-12-2000
issued by the Government cancelling the Memo dated 14-10-1991.
Thus, we find that there is no legal basis for fixation of pay scales of
Paid Secretaries on par with Category-V Supervisors of District
Cooperative Central Banks. The fact remains that no PACS fixed the
staffing pattern, pay scales and allowances payable to the Paid
Secretaries so far. The Societies are now duty bound to implement the
provisions of Section 116-C of the Act as amended and accordingly fix
the pay scales and such fixation has a direct nexus to the financial
viability of the Society concerned.

28. Section 116-C of the Act commands that the power to fix the
staffing pattern, qualifications, pay scales and other allowances for its
employees with the prior approval of the Registrar of Co-operative
Societies itself is subject to the condition that the expenditure towards

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pay and allowances of the employees shall not exceed two per cent of
the working capital or thirty per cent of the gross profit, in terms of
actuals in a year whichever is less. Each society is an autonomous
institution and is entitled to fix the pay and allowances of its
employees with the prior approval ofthe Registrar of the Co-operative
Societies. Such fixation, obviously, depends upon the financial
resources and the funds at its command. Neither the Government nor
the Registrar has any power to fix the pay and allowances of any
employee working in the Co-operative Societies including that of the
Paid Secretaries. Even the Co-operative Society cannot fix the pay and
allowances in such a manner whereby expenditure towards the pay
and allowances exceeds two per cent of the working capital or thirty
per cent of the gross profit, in terms of actuals in a year whichever is
less.

29. Even prior to the incorporation of Section 116-C of the Act in the
year 1985, the Government had no power to fix the pay and
allowances of any employee working in the Co-operative Societies. It is
under those circumstances, the Memo under which the directions have
been issued fixing the pay and allowances of Paid Secretaries on par
with Category-V employees of the District Co-operative Central Banks
was held to be void and inoperative.

30. In our considered opinion, there are not only no legal impediments
for fixing the pay and allowances of employees by the Society
concerned, but the Society is also duty bound and under legal
obligation to fix the pay and allowances in terms of Section 116-C of
the Act. No other course is permissible.

31. The writ petitioner-Union, in the instant writ petition, does not
challenge any particular order directing the recovery of any specified
amount as such from any of its members. No doubt, during the course
of hearing of the writ appeals, certain proceedings of the Divisional/
District Cooperative Officers are shown wherein certain recoveries are
directed to be made on the ground that the concerned Paid Secretary
had drawn salaries over and above the entitlement. Most of them
appear to have come into existence after filing of the writ petition. The

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fact remains that the validity of those orders was never put in issue.

32. Sri S. Ramachandra Rao, learned Senior Counsel appearing on

behalf of the writ petitioner-Union, however, drawn our attention to the
proceedings dated 2-1-2002 issued by the Registrar of Co-operative
Societies directing the District Co-operative Officer, Kakinada, East
Godavari District to take appropriate action keeping in view the High
Court's Orders in W.A.Nos.424 and 425 of 2001 and W.A. No. 464 of
2001 etc. In the said proceedings, it is inter alia pointed out that every
PACS should adopt the pay scales under Section 116-C of the Act with
the prior approval of the Registrar of Co-operative Societies from the
date of the orders of this Court in W.A. Nos. 424 and 425 of 2001 i.e.,
from 16-10-2001.'

33. Another proceedings dated 10-8-2002 issued by the Commissioner

and Registrar of Co-operative Societies is also placed before us
whereunder the Registrar directed the Managing Committees of PACS
to fix up the staffing pattern and pay scales of their employees and
other allowances in accordance with Section 116-C of the Act and
submit the proposals for approval within 45 days from the date of
receipt of the said proceedings. In turn, circulars appear to have been
issued by the District Cooperative Officers directing the PACS to
implement the directions of the Registrar. We fail to appreciate as to
how those directions issued by the Registrar of Cooperative Societies
suffer from any legal infirmity. The directions issued are only to the
effect to implement the statutory provisions, which the Societies are
bound to implement even in the absence of such directions issued by
the Registrar of Co-operative Societies. The Registrar in purported
exercise of power under Section 4(2) of the Act issued such directions
in the interest of PACS and to ensure the smooth functioning of the
societies in the matter of staffing pattern and pay scales for their
employees. The directions issued are perfectly in order, legal and valid.
Those proceedings do not give rise to any cause for filing the present
writ petition.

34. In view of the decision of this Court declaring the Memo dated 14-
10-1991 void and inoperative, upon which the whole claim of the

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members of the writ petitioner-Union is rested, there is no alternative
except to implement the decision of this Court and recover the
emoluments drawn by the Paid Secretaries in excess of their lawful
entitlement towards pay and allowances. What is the excess amount
drawn, if any, by each of the employees, depends upon the fixation of
pay and other allowances by the Society concerned in respect of each
of the Paid Secretaries/ employees in accordance with the Scheme
formulated under Section 116-C of the Act and the rules framed
thereunder. The members of the writ petitioner-Union are not entitled
to resist the recovery proceedings for the reason that they have drawn
the emoluments under the interim orders granted by this Court from
time to time even after the Government Memo dated 14-10-1991 was
kept in abeyance by the Registrar of Co-operative Societies vide orders
dated 14-2-1992. Those interim orders granted by this Court have got
themselves merged into the final orders whereunder no relief as such
has been granted by this Court conferring any right upon the Paid
Secretaries/employees of PACS to draw any particular emolument or
pay scale as such.

35. This legitimate exercise to be undertaken by each of the PACS is

sought to be interdicted at the instance of the writ petitioner-Union at
every stage by resorting to filing writ petitions. Any amount of
confusion is sought to be created by the writ petitioner-Union virtually
preventing the authorities as well as the societies from implementing
the mandatory statutory provisions contained in Sections 116-AA and
116-C of the Act. This Court in exercise of its jurisdiction under Article
226 of the Constitution of India cannot issue any writ of mandamus
prohibiting the authorities concerned from giving effect to the
statutory provisions and their implementation. Any such mandamus
from this Court would -be destructive of rule of law, as it would amount
to compelling the respondents-authorities not to obey the law.

36. The question whether the provisions in Section 116-C of the Act are
prospective or retrospective in nature does not arise for consideration
in this case. It is absolutely unnecessary to go into that aspect of the
matter for the reason that even before the amendment of Section 116-
C by Amendment Act 22 of 2001 on 25-4-2001, the Society had always
14/18
the power to fix the staffing pattern, qualifications, pay scales and
other allowances for its employees with the prior approval of the
Registrar of Co-operative Societies. The present pay scales and
allowances that are being drawn by the members of the writ petitioner-
Union were not fixed by the society concerned after abolition of
common cadre, nor the pay scales and allowances were fixed under
any statutory provision, but were fixed and drawn by themselves under
the Memo dated 14-10-1991 which has been declared void and
inoperative.

37. In our considered opinion, none of the proceedings, which were

shown to us during the course of hearing of the writ appeals, though
not impugned, suffer from any illegality. All the authorities including
the PACS are bound to implement the statutory provisions and
accordingly fix the pay and allowances and other emoluments payable
to its employees in accordance with Section 116-C of the Act. The
societies are entitled to fix the salary, emoluments and other
allowances of its employees in accordance with law even for the period
before incorporation of Section 116-C and its subsequent amendment
by Amendment Act 22 of 2001. The emoluments, pay scales and
allowances that are to be fixed in respect of each of the employees by
each of the societies may depend upon variety of facts and
circumstances so far as they relate to the period prior to Section 116-C
of the Act coming into operation with effect from 22-4-1985 is
concerned, and so far as such fixation after 22-4-1985 is concerned the
same is to be in accordance with the mandatory requirement under
Section 116-C of the Act. Unless this exercise is undertaken and
completed the question of recoveries as such does not arise. The
quantum of amounts to be recovered from each one of the employees
of the Society concerned depends upon such fixation of pay scales,
emoluments and other allowances. It shall always be open to an
aggrieved employee to raise a dispute about the quantum of the
amount if any, sought to be recovered from such employee. Each of
the proceedings proposing to recover the amount, if any, from each of
the employees, is required to contain the complete details as to how
the amounts sought to be recovered are arrived at.

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38. It is unfortunate that the members of the writ petitioner-Union by
indulging in chronic and vexatious litigation have created a situation
virtually disabling the authorities concerned to proceed in the matter,
which had ultimately resulted in extinction of various Societies. We find
it not necessary to recall the earlier observations made by more than
one Division Bench of this Court in the judgments referred to
hereinabove that the Societies are not employment generating units,
but have been formed for the welfare of its members. Each one of
them is an autonomous body and entitled to function in accordance
with its bye-laws subject to the provisions I of the Act. It is equally
unfortunate that the State Government in its anxiety to cajole the
members of the Union went on entering into settlements and
agreements without any notice and approval of the Societies
concerned involving them with extra financial burden. It is the
Government Memo dated 14-10-1991, which had given rise to this
avoidable, prolonged and vexatious litigation.

39. The next question that falls for consideration is whether the
employer has no power to recover the excess amount drawn by its
employees ?

40. It was contended that the payments made earlier towards agreed
remmeration cannot be recovered for any reason whatsoever.

41. The observations made by the Supreme Court in Shyam Babu

Verma v. Union of India, : (1994)ILLJ815SC , cannot be torn out of the
context, but are required to be understood in the background leading
to such observations, wherein the Court observed that 'it shall only be
just and proper not to recover any excess amount which has already
been paid to them.' The said observations do not support the
contention that the excess amount drawn towards pay and other
allowances without any authority of law can never be recovered. In
that case, there was a serious dispute with regard to the entitlement of
the petitioners therein to the pay scale of Rs. 330-480 in terms of the
recommendations of the Third Pay Commission.The Court found that
the petitioners therein received the scale of Rs. 330-560 since
1973though they were not entitled but due to no fault of theirs. In the
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instant case, the PACS beingthe employer never fixed any pay scale
and subsequently reduced the scales on its own. The attempt is to fix
the pay scale now for the first time and recover the amounts, if any,
found to be due drawn by the employees in excess of the pay scales
for which they are legitimately entitled to.

42. Likewise, the observations made by the Supreme Court in P. Tulsi

Das and Ors. v. Government of A.P. and Ors. 2002 (7) Supreme 524, do
not lend any support to the proposition sought to be canvassed by the
learned Senior Counsel appearing on behalf of the writ petitioner-
Union. In the said decision, Sections 2 and 3 of Andhra Pradesh
Educational Service Untrained Teachers (Regulations of Services and
Fixation of Pay) Act, 1991 were struck down as violative of Articles 14
and 16 of the Constitution of India as those provisions were brought
into force with retrospective effect to take away the vested rights of
the appellants therein. In the instant case, no vested right of the
members of the writ petitioner-Union is sought to be taken away.

43. Similarly, the decision in Haryana Civil Secretariat Personal Staff

Association (supra) does not render any assistance to the proposition
sought to be canvassed by the learned Senior Counsel for the writ
petitioner-Union. The Supreme Court having found that the High Court
committed an error in allowing the writ petition and directing the
authorities to grant the scale of Rs. 2000-3500 to the Personal
Assistants of the State Civil Secretariat with effect from 1-1-1986,
however, observed that if any of the Personal Assistant serving in the
Haryana State Civil Secretariat has/ have received any additional
emolument in pursuance of the judgment of the High Court, such
amount will not be recovered from him/them. Those observations were
made having regard to the fact that there was a possibility of some of
the writ petitioners therein to have received the additional emoluments
pursuant to the final judgment of the High Court. In the case on hand,
there is no judgment under which the members of the writ petitioner-
Union have drawn any particular pay scale, allowances and other
emoluments.

44. For the aforesaid reasons, we find it difficult to sustain the

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judgment under appeal. The same is accordingly set aside.

45. The writ appeals are allowed subject to the observations made
hereinabove. No order as to costs.

WP No. 8522 of 2003

46. For the very same reasons recorded in WA Nos. 32 and 413 of 2003
supra, the writ petition fails and shall accordingly stand dismissed. No
order as to costs.

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