STATE OF U.P. & ORS. versus VIRENDRA KUMAR & ORS.

Citation: [2022] 14 S.C.R. 638 · Decided: 25-11-2022 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Disposed off
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Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 14 S.C.R.
   [2022] 14 S.C.R. 638
638
STATE OF U.P. & ORS.
v.
VIRENDRA KUMAR & ORS.
(Civil Appeal Nos.6622-6623 of 2022)
NOVEMBER 25, 2022
[SANJAY KISHAN KAUL, ABHAY S. OKA AND
 VIKRAM NATH, JJ.]
Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 –
s.3, 7, 8, 15, 92, 94(2)(nn) and 95(1)(f) – On 10.02.2020, a Bench
of two judges made reference to a larger Bench to reconsider the
Preetam Singh’s case – The core issue on which the reference is
made to a larger Bench is whether the act of determining service
conditions of the employees and officers of the Board is one of the
statutory functions of the Board – Held: The power to determine
the conditions of service of officers and servants of the Board vests
with the Board and, said power can be exercised only by framing
regulations under clause (f) of sub-section (1) of section 95 – Clause
(nn) of sub-section (2) of section 94 confers power of the State
Government to frame Rules in respect of any matter for which
regulations can be framed by the Board – The decision of the Supreme
Court in Preetam Singh’s case is upheld with a modification that
State Government can always exercise the powers under clause (nn)
of sub-section (1) Section 94 of the 1965 Act for determining the
conditions of service of the officers (other than the Housing
Commissioner) and employees of the Board – If such power is
exercised, those provisions of the Regulations framed under clause
(f) of sub-section (1) of Section 95 which are repugnant to the Rules,
shall be void – U.P. State Control Over Public Corporations Act,
1975 – s.2.
Disposing of the appeals, the Court
HELD:1. Sub-section (1) of Section 8 of Uttar Pradesh Avas
Evam Vikas Parishad Adhiniyam, 1965 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
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conditions of the officers and servants of the Board. The control
of the State Government and the power to impose restrictions as
provided in sub-section (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. In this context, Sections 94 and 95
of the 1965 Act are also relevant. Under sub-section (1) of Section
94, the State Government retains the general Rule making power
of framing Rules for carrying out the purposes of the Act. Without
prejudice to the generality of the power under sub-section (1),
sub-section (2) of Section 95 lays down the topics and subjects
on which Rule-making power can be exercised. One of the specific
powers conferred by clause (b) of sub-section (2) of Section 94
on the State Government, is of framing Rules for laying down
conditions of service of the Housing Commissioner. Thus, clause
(nn) of sub-section (2) of Section 94 confers power on the State
Government to frame Rules in respect of any matter for which
regulations can be framed by the Board . Clause (f) of sub-section
(1) of Section 95 specifically empowers the Board to frame
Regulations governing conditions of service of officers and
servants of the Board. Under clause (b) of sub-section (2) of
Section 94, the State Government has a power to determine the
conditions of service of the Housing Commissioner. Thus, the
Legislature has specifically incorporated in Section 7 that the
State Government shall have the power to determine the
conditions of service of the Housing Commissioner. However,
such a provision is conspicuously absent in Section 8 dealing with
the appointment of servants and officers of the Board. The reason
is that the power to determine the service conditions of the other
officers and servants has been conferred on the Board which can
be exercised by making Regulations. [Para 26][659-C-G; 660-B-
H; 661-A-B]
2. In view of sub-section (2) of Section 95 read with clause
(nn) of sub-section (2) of Section 94, Regulations, if any, framed
by the Board for determining the conditions of services of its
officers and servants are always subject to the Rules which may
be framed by the State Government by exercising the power
under clause (nn) of sub-section (1) of Section 94. Whenever
STATE
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