JUDGMENT
C. Mookerjee, C.J.
1. These twelve writ petitions have been filed on behalf of Group Secretaries, Secretaries and Peons of Primary Agricultural Credit Societies. Multi-Purpose Co-operative Societies, etc. raising several questions relating to their recruitment and conditions of service including scales of pay.
2. Before we consider the merits of the claim to enhanced scales of pay for the Group Secretaries, Secretaries and Peons employed in the aforesaid Co-operatives Societies, we may briefly set out the history relating to caderisation of these posts. The historical perspective of these matters has been fully set out in the report of Kore Committee appointed by the State Government. When the co-operative movement had taken its root, the concept of a Primary Secretary was that of an honorary active public worker. With the growth of the co-operative movement along with many other things, the said concept of honorary public service had changed. Secretaries and/or employees in the Co-operative Societies began to receive emoluments. Need began to be felt for providing a broad pattern of service conditions for Primary Secretaries and to avoid diversities and disparities in the scales. Our attention has been drawn to Government resolution dated 7th November, 1969 seeking to bring about caderisation of the posts of Group Secretaries and Secretaries employed in Primary Co-operative Societies etc. By further resolution dated 18th June, 1971, the State Government had evolved a revised scheme regarding caderisation. Since it is not necessary, we do not propose to set out the details of the scheme, the broad features of which were determination of the strength and the conditions of service would be prescribed by the Committees/Societies. The office-bearers and the functioning of the said Societies were to regulated by the directives of the Government which came to be formed as model bye-laws to be adopted by the said Societies/Committees. The said Societies and/or Committees were to provide for the Co-operative Societies Secretaries including Group Secretaries and/or Peons on deputation. The third broad feature was the provision for raising fund for payment of emoluments to these cadres of Group Secretaries and Secretaries by placing an impost upon different classes of co-operative bodies. It is also noticeable that since its inception the Government itself began to shoulder a part of the financial burden for giving effect to the caderisation of the above posts.
3. We may also mention that the Secretaries including Group Secretaries and Peons were encadred and had generally formed themselves into trade unions, some of which figure as petitioners before us. These representative bodies on their behalf had been agitating for upward revision of the scales of pay, allowances, etc. of the Group Secretaries, Peons, etc. In order to look into these grievances regarding wage structure etc. the State Government had appointed Kore Committee which submitted its interim and final reports in the years 1973 and subsequently Dr. Dandekar Committee was appointed which submitted its report in 1978. Since most of the matters covered by these two previous reports were subject-matter of examination of a Study Group headed by Shri S.N. Desai, the then State Minister for Co-operation, Maharashtra, it is quite unnecessary to set out the reports of Kore Committee and Dr. Dandekar Committee. In fact, one of the moot points in these writ petitions would be the import and legal effect of the report, dated 6th July, 1987 of the said Study Group appointed by the Government of Maharashtra resolution dated 15th November, 1982 and of the partial acceptance thereof both in its administrative and financial aspects by two State Government resolutions. We shall hereinafter deal at greater length with the recommendations made by the said Study Group and the two Government resolutions thereupon.
4. At this stage, we may also point out that the Maharashtra Legislature by Maharashtra Act 36 of 1975 had inserted section 69-A in the Maharashtra Co-operative Societies Act, 1960. Section 69-A has placed on a statutory basis the main aspects of the constitution of the Co-operative State Cadre of Secretaries of such Societies and establishment of employment funds for such cadre. Under sub-section (1) of section 69-A a Co-operative State Cadre of Secretaries of primary agricultural credit societies, multi purpose co-operative societies and service co-operative and such other societies had been created. Recruitment to the said Cadre was to be made by the Central Societies notified in this behalf by the State Government. These Central Societies were to determine the number of persons to be recruited and their conditions of service. Under sub-section (1) of section 69-A, power had been conferred upon the State Government to issue general or special orders to these Central Societies in the matter of determination of the number of persons to be recruited and their conditions of service. Under sub-section (2) of section 69-A, a Central Society was to depute from time to time any person appointed by it to the cadre of Secretaries to work under any Society referred to in sub-section (1) of section 69-A The salary and allowance of such Secretaries are payable from a fund to be established under sub-section (3) of section 69-A of the Act. Sub-section (4) of section 69-A set out the society or classes of societies and other bodies which were to contribute to the Co-operative State Cadre Employment fund as may be prescribed by the State Government. Sub-section (5) of section 69-A deals with the method of recovery in case of failure to pay contributions to the said Fund.
The Government of Maharashtra, Agriculture and Co-operation Department, by resolution dated 12th February, 1987, purported to resolve that the categorisation of the scheme of Group Secretaries be cancelled from 31st March, 1987 and to introduce a new scheme with effect from 1st April 1987. Some parts of the said resolution proposed to change and/or rescind previous administrative decisions and/or Government resolutions pertaining to appointment and conditions of service of Secretaries. The said resolution dated 12th February, 1987 also categorically mentions that the Commissioner for Co-operation should propose suitable amendments to section 69-A and Rule 53(a)(b) of the Rules framed under the Act in order to give effect to the said resolution.
5. Some of the writ petitions were filed prior to the passing of the said Government resolution dated 12th February, 1987 and the issuance of the time-bound programme relating to implementation of the new scheme issued by the Commissioner for Co-operation and the Registrar of Co-operative Societies dated 2nd February, 1987. The writ petitions filed prior to the issuance of this resolution and the programme have been allowed to be amended to incorporate challenges against the said resolution and the programme. Some of the writ petitions before us which have been filed after the issuance of the aforesaid resolution and the time bound programme impugn the said resolution and the programme for implementation of the new caderisation scheme.
6. The petitioners’ claim for upward revision in these cases of pay and allowances of the Secretaries, Group Secretaries, etc. of the aforesaid Societies broadly rests on the following three grounds :—
7. The first is that the resolution of the State Government dated 23rd June, 1982 accepting in part the Study Group report of Shri S.N. Desai amounted to the acceptance of the petitioners’ contention that the pay and allowances of the Secretaries employed in these Co-operative Societies should be the same as those enjoyed by Gram Sevaks in the State of Maharashtra. The said Government resolution amounted to directions to pay the Secretaries employed in the Co-operative Societies at the rates prescribed the said Government resolution. The second basis of the petitioner’s claim is that irrespective of the fact whether the said Government resolution amounted to binding orders, denial to the Secretaries of scales of pay and allowances enjoyed by Gram Sevaks in the State of Maharashtra would result in discrimination against the former, inasmuch as both performed same or similar duties. The third case of the petitioners’ claim for enhanced pay and allowances is the award given by the Industrial Tribunal. Amravati, in Reference (ITA) No. 3 of 1984 (Yeotmal Zillah Dekhrekh Sahakari Sanstha Maryadit and Workmen) which was, subject to minor modification, confirmed by the Nagpur Bench of this Court and which was not interfered with by the Supreme Court. According to the petitioners, all Secretaries and Group Secretaries employed in different primary Co-operative Societies should be paid at the same rate and in the scale fixed by the Industrial Tribunal, Amravati, in the said Reference (ITA) No. 3 of 1984.
8. We may shortly dispose of the second and the third grounds upon which the petitioners have founded their case. Yeotmal Zillah Dekhrekh Sahakari Sanstha Maryadit, a District Co-operative Society, had filed a writ petition before the Nagpur Bench of this Court. The State Government which was not a party before the Industrial Tribunal had applied before the Nagpur Bench of this Court for being added as a respondent in the said writ petition. Ultimately, the writ petition was disposed of by consent the writ petition and its workmen. The award had been upheld subject to the alteration in the date of its implementation. The State which was not a consenting party to the writ petition had filed a special leave petition in the Supreme Court which, however, had failed. We are, unable to straightaway issue a mandate directing that the Secretaries employed in other Co-operative Societies who were not parties to the award rendered by the Industrial Tribunal, Amravati, should be given the pay and allowances mentioned in the said award. The High Court at its Nagpur Bench had disposed of by consent the writ petition arising out of the said award of the Tribunal. Secondly, under sub-section (1) of section 69-A of the Maharashtra Co-operative Societies Act, 1960 in relation to the Secretaries of certain Societies who are members of the Cadre, each Central Society has to determine the number of persons to be recruited and their conditions of service. Undoubtedly, as far as possible, uniformity in the scales of pay for the Secretaries of the Societies belonging to this Cadre is to be achieved. There is however some substance in the contention of Mr. Paranjape, learned counsel for the Respondent-State that the actual rates of pay and allowances admissible may at least marginally vary depending upon the financial condition of the Societies concerned and the amounts of contributions payable by the Societies and the bodies specified in sub-section (4) of section 69-A. For all these reasons, on the basis of an award which was modified by consent on a writ petition, without considering all aspects of the matter, we are not prepared to hold that fixation of pay of the Secretaries of the Co-operative Societies in question ought to be made according to the aforesaid award. We also add that in view of the binding award and the consent order passed in the writ petition, nothing observed in our judgment rendered in these cases will affect the rights of the parties to Reference (ITA) No. 3 of 1984 before the Industrial Tribunal, Amravati. We also add that decision in these cases would not also affect any other pending or disposed of references by the Industrial Tribunal concerning scales of pay of Secretaries.
9. The onus was clearly upon the petitioners to satisfactorily establish that the Secretaries of Co-operative Societies who have been encarded in terms of section 69-A of the Act have some responsibility, confidentiality, relationship with their employers and the public etc. as those of the Gram Sevaks and, therefore, there was no reasonable basis in making differentiation in the pay-scales of Secretaries of Co-operative Societies and Gram Sevaks. Having perused the petitions and the affidavits filed in the cases, we are constrained to observe that the petitioners have not established that for the purpose of fixation of pay scales the Secretaries of Co-operative Societies and the Gram Sevaks ought to be placed in one single class and that they should enjoy identical scales of pay and allowances. In this connection, Mr. Paranjape, the learned Counsel for the Respondent State, has correctly relied upon a recent Supreme Court decision in the case of Federation of A.I.C. & C.E. Stenographers (Regd.) v. Union of India, . The Supreme Court in the said reported case has repelled a similar argument claiming parity and equality of pay between Stenographers in Customs and Excise Department and those employed in the Central Secretariat before the IVth Pay Commission, vide paragraphs 7 to 11 of the reported case. We respectfully adopt the ratio of the said case and hold that it has not been established that the Secretaries of Co-operative Societies are entitled to the same scales of pay as those enjoyed by Gram Sevaks in the State of Maharashtra.
10. Having given our anxious consideration to the remaining ground upon which revision of pay-scales has been claimed, we are inclined to uphold it for the reasons presently mentioned. We have already referred to the scheme of different sub-sections of section 69-A of the Maharashtra Co-operative Societies Act, 1960, and which confer, inter alia, power upon the State Government to issue under sub-section (1) general or special orders regarding the number of persons to be recruited and their conditions of service. The Society which will be the custodian of the Fund for meeting the expenses of the salaries and allowances of the encadred Secretaries is to be notified under sub-section (3) of section 69-A. The State Government under sub-section (4) of the said Act also prescribes the rates at which the Societies and the bodies are to subscribe to the said Fund. We have mentioned that the State Government has assumed a part of the financial burden for meeting expenses of the salaries, allowances and other emoluments to be paid to the persons appointed to the Co-operative Cadre. We are of the view that the Government resolutions passed upon the Study Group report of Shri S.N. Desai, the then, Minister of State for Co-operation, amount to orders by the State Government to pay the members of the cadre of Secretaries of Primary Agricultural Credit Societies, etc, covered by section 69-A at the rates specified in the Government resolutions. The learned Counsel on both sides have taken us through the recommendations of the Study Group and the Government resolutions passed in respect of each item of the said recommendations dated 23rd July, 1982. For the purpose of acceptance, the said recommendations of the Study Group headed by Shri S.N. Desai have been divided into two categories. By one set of Government resolutions dated 23rd June, 1982 the State Government in part had accepted the suggested administrative changes in the set-up of the caderisation scheme. We are unable to accept the extreme submission made on behalf of the petitioners that the State Government by its said resolutions had accepted in full the recommendation that the pay and allowances drawn by Gram Sevaks and those drawn by Secretaries of Co-operative Societies should be identical. Column 3 of the Government resolution dated 23rd June, 1982 merely set out the suggestions of the Study Group which might have recommended such parity of pay-scales. The Government resolution set out in the 4th column did not either directly or indirectly reflect any intention to accept such recommendation. In fact, in the set of resolutions pertaining to the financial implications, the State Government had purported to prescribe scales for the Secretaries different from those enjoyed by Gram Sevaks, vide recommendation No. 2 and the corresponding Government resolution. According to the Government resolution, the Societies dealing in 5 lakh loan transactions shall be provided with one Group Secretary from the Cadre. This Group Secretary shall get the pay-scale of Rs. 260-10-390-10-420-Extn.-15-495 plus D.A. from Rs. 222.50 to Rs. 322.50 per month, vide Schedule No. 3. The Group Secretaries from other Primary Credit Societies shall get pay-scale of Rs. 145-5-180-7-250-Extn. 10-350 plus D.A. at the rate of Rs. 235/- to Rs. 346/- per month. For Peons pay scales were also prescribed. We are not unaware of the fact that no separate scale was provided for Secretaries deputed to single Co-operative Societies. In the absence of any other different scale of pay, presumably the second scale for such Primary Credit Societies should be also extended to them.
11. We are unable to accept as sound the contention that in spite of the said Government resolutions dated 23rd June, 1982 and 23rd August 1982 upon the recommendations of the Study Group headed by Shri S.N. Desai no changes were intended to be effected in the scales of pay for Secretaries including Group Secretaries of the Co-operative Societies. In the resolution dated 23rd June, 1982 it was clearly stated : “Government …directs all concerned to take immediate action on the recommendations accepted by the Government”. Similarly, in the lengthy resolution dated 23rd August, 1982 pertaining to the financial demands of the employees, directions were given for their implementation. In paragraph 2 of the said resolution the Government inter alia directed “all the concerned should take immediate action in respect of the recommendations accepted by the Government”. The Government proposed to take action separately as regards the amendments to be made in respect of some of the decisions as per the provisions of the Maharashtra Co-operative Societies Act. in the concluding paragraph 4 of the said resolution the Government had stated :”These orders have been passed as per the decision taken in the meeting of the Ministers held on 7th July, 1982 and in concurrence with the Finance Department vide its unofficial reference No. BR- 779/82-14 dated 10-8-82.” The said resolution was issued also by order and in the name of the Governor of Maharashtra. Having regards to all these aspects, we are bound to hold that the two resolutions pertaining to the recommendations of the Study group relating to the revision to pay scales etc. of the Secretaries were not intended to be mere pious expression of views without any intention to implement them and to revise the pay scale of the Secretaries which had been pending consideration f or more than ten years.
12. Mr. Paranjape, the learned Counsel appearing on behalf of the Respondent-State, submitted that section 69-A was to be implemented in its entirety and each part of the said section was integrally and organically connected with the other. In other words, the direction to the Central Societies to pay particular scales of pay and/or D.A. to the Secretaries was connected with the provisions relating to the contributions to be made to the fund out of which the said payments were to be made. Undoubtedly, we can discern a scheme in section 69-A of the Act. The provisions of this section were to give legislative sanction to caderisation of the Secretaries, etc. employed in certain Co-operative Societies and deputation of the Secretaries appointed by the Central Societies to individual Co-operative Societies. The Act also provides for creation of the Fund for meeting the expenses of payment of salaries, allowances, etc. of these encadred Secretaries.
13. We are, however, unable to appreciate the submission that the provisions relating to contributions to the Fund had been rendered nugatory by reason of judicial decisions rendered in the writ petitions filed by some of the bodies and Societies from whom contributions had been demanded. Before we proceed further, we observe that it would not be fair to put the blame of the poor of the judiciary for the supposed inability on the part of the State to give effect to be legislative provisions relating to caderisation of the Secretaries, etc. of the Societies and for payment of their emoluments at the Scales fixed by the State. It may be that some of the individual Societies and bodies succeeded in their challenges against contributions demanded from them to the Fund created for meeting the salaries and other allowances payable to the Secretaries. It was undoubtedly open to the State to make proper legislative and executive amendments/provisions for ensuring adequate contribution to the Fund created under sub-section (3) of section 69-A of the Act. It is not for this Court to suggest how the defects, if any, pointed out in the decisions of this Court referred to in the affidavit in reply filed on behalf of the State could be removed and how funds are to be raised. We are not prepared to accept that the State was totally helpless after the judicial pronouncements rendered in some cases in which the levy had been challenged. In any event, in spite of these judicial pronouncements, section 69-A still remains on the Statute Book and the State has continued to make early grants towards payment of pay etc. to the Secretaries of these Societies. Therefore, the State remains under a statutory duty to issue necessary directions regarding the payment of salary and allowances to the Secretaries who have encadred at the rates fixed by the State. It is also for the State to take such steps as might be open to it to ensure that adequate amount of money flow into the funds for meeting these expenses. It is unnecessary for us to pursue the point that under section 69-A of the Act the State Government having given directions and orders for payment according to the scale indicated in the resolutions based upon the recommendations of the Study Group, it has a further duty to enforce the said directions that payments according to the said scales be made to the Secretaries of the Co-operative Societies in question.
14. The learned Counsel for the respondents also pointed out while prescribing revised scales of pay in its resolutions based on the Study Group report of Shri S.N. Desai, the State Government had mentioned about retrenchment of the excess number of Secretaries. Unless the State Government is allowed to give effect to the said decision to retrench the surplus Secretaries, the writ petitions filed on their behalf cannot be maintained for obtaining salaries in the scales fixed by the said Government resolutions. Again, this point is without substance. As far as we can perceive, there has been no restraint upon the State Government from implementing any part of the resolutions made upon the Study Group report of Shri S.N. Desai, either relating to scale of pay or retrenchment. In the writ petitions no relief also has been prayed for in respect of the said policy decision regarding retrenchment of the surplus staff, if any. We may add that whether in view of the increase, if any, in the volume of work of the Co-operative Societies, retrenchment would be required is a matter which must be left for decision to the appropriate authorities in the State. Therefore, the question of the petitioners approbating and reprobating at the same time does not arise at all.
15 For the foregoing reasons, we conclude that the State Government is bound to implement its resolutions dated 23rd June, 1982 and 23rd August, 1982 inter alia, regarding the scales of pay for the Group Secretaries, etc. of the Co-operative Societies covered by section 69-A of the Act. This matter has been pending for several years. The legal position has been made clear by our judgement delivered today. We are also conscious of the fact that there might be some impediments in the way of the State Government recovering contributions to the Fund for the past period. Taking all these relevant factors into consideration, we propose to direct the State Government to implement its order upon the Central Societies to pay the Secretaries of the Societies in question at the scale prescribed by the resolution dated 23rd August, 1982 with prospective effect.
16. We have already indicated that the petitioners have also laid challenges against the subsequent Government Resolution dated 12th February, 1987. At the outset, we must repeal the submission made on behalf of the petitioners that the said resolution was antedated. The original notings in the official files were placed before us. We are satisfied that even if there was any inadvertent error in putting the date by the typist, there was no question of antedating the said resolution dated 12th February, 1987. We have already mentioned that by the said resolution dated 12th February, 1987 the Government had purported to cancel substantial portions of the existing caderisation scheme and to substitute the same by a new one. The most salient aspect of this proposed scheme was to have Taluka Committees for recruitment of the Secretaries and to make the Secretaries employees not of the Societies which had originally appointed them but of the Taluka Committees to be formed under the said resolution. We have already mentioned that the said Government resolution dated 12th February, 1987 itself indicated that in order to implement the said resolution amendment of section 69-A of the Co-operative Societies Act would be required. By the said resolution dated 12th February, 1987, the Government purports not only to effect changes in the administrative resolutions and directions but also to make proposals for legislative changes. We are of the view that without effecting necessary legislative changes the resolution dated 12th February, 1987 cannot be implemented. The said resolution must be considered as proposal to be implemented by taking necessary steps according to law. We may also indicate that in the absence of statutory provision or by consent there could be no question of forcing the existing Secretaries to opt for service under the Taluka Committees which are yet to come into existence. A detailed examination of the Government resolution dated 12th February, 1987 and also time-bound programme issued by the Commissioner for Co-operation dated 2nd February, 1987 is not necessary in view of the fact that without amendments made in section 69-A neither the said programme nor the resolution can be fully enforced.
17. Before we delivered our judgement, Mr. Sawant appearing on behalf of the petitioners submitted that in the event the Secretaries of the Co-operative Societies in question be given the scales of pay prescribed by the Government resolution dated 23rd Augutst, 1982, the said pay would fall short of the minimum wages. This point was not taken in the writ petitions and there is not enough material also to decide whether by prescribing the scales of pay by the resolution dated 23rd August, 1982 the Government has infringed and/or disregarded any other law relating to payment of salary and/or allowances. Therefore the said point relating to the minimum wages is left open. It is also not for us to express any opinion whether even after the disposal of the writ petitions the petitioners have any other remedy open to them by way of an industrial disputes or otherwise. It is for the petitioners to advise themselves in this regard.
18. For the foregoing reasons, these writ petitions succeed in part. We order a writ of mandamus to issue directing the Respondents to give effect to the resolutions dated 23rd June, 1982 and 23rd August, 1982 pertaining to the scales of pay and allowances prescribed therein. We give the Respondents six months time for implementation of this order. We direct that the revised scale of pay for the Secretaries of the Co-operative Societies be given effect to from 1st November, 1988. No other order is made in respect of the rest of the prayers in the writ petitions. We direct the respondents not to give effect to the Government resolution dated 12th February, 1987 without effecting necessary legal provision for its implementation. There will be no order as to costs.