M.M. Kumar, J. - (1.) THIS judgment shall dispose of CWP Nos. 15699 and 20856 of 2010 because common question of law and facts are involved. The common prayer made in these petitions filed under Article 226 of the Constitution is for striking down Rule 4(iv)(a) of the Punjab Cooperative Marketing -cum -Processing Service Societies Employees Service Rules, 1996 (for brevity, 'the 1996 Rules'), being ultra -vires Articles 14 and 16(1) of the Constitution because it restricts the expenditure on staff to 50% of the annual income of the Cooperative Marketing -cum -Processing Societies. Additionally, the petitioners in CWP No. 15699 of 2010 have also challenged the Auditor's report, dated 19.8.2010 (P -9), for the period from 1.4.2005 to 31.3.2009. Likewise, in CWP No. 20856 of 2010, orders dated 7.5.2010 (P -4) and 12.11.2010 (P -6 to P -8) have also been challenged whereby recovery is sought to be made from the petitioners on account of implementation of Rule 4(iv)(a) of the 1996 Rules. Since identical facts are involved in both the petitions, the same are referred from CWP No. 15699 of 2010. The petitioners are the employees of the Tarsika, Cooperative Marketing -cum -Processing Service Society Ltd., Tarsika, District Amritsar -respondent No. 4. Petitioner No. 1 is working as a Manager whereas petitioner No. 2 is employed as a Salesman with Society -respondent No. 4. Under Rule 28 of the Punjab Cooperative Societies Rules, 1963 (for brevity, 'the 1963 Rules'), the Registrar, Cooperative Societies, Punjab -respondent No. 2 is empowered to make further rules governing the service conditions of the employees of the Cooperative Marketing Societies/ Cooperative Marketing -cum -Processing Societies in the respondent State of Punjab. Exercising the said power, the Registrar -respondent No. 2 has framed the 1996 Rules. Rule 4 of the 1996 Rules deals with the' Service'. Sub -rules (i) and (ii) of Rule 4 prescribes that the 'service' would comprise of the posts specified in Rule 7 and the Managing Committee may add or delete posts with the prior approval of the Registrar -respondent No. 2. Sub -rule (iii) of Rule 4 envisages that no employee would be paid salary and allowances in excess of the permissible and if his total salary exceeds the level of salary fixed under the 1996 Rules the same would be treated as his personal pay till it reaches at the level of pay scales fixed under the rules. Sub -rule (iv) further stipulates that the members of the service would be paid dearness allowance equivalent to the rate of dearness allowance being given by the State Government to its employees subject to the prior approval of the Committee and depending upon the financial position of the Society. However, clause (a) of sub -rule (iv) of Rule 4 of the 1996 Rules imposes a restriction that the total expenditure on the maintenance of the staff should not exceed 50% of the total income of the society as indicated in the previous year audited balance sheet. At the same breath clause (b) of sub -rule (iv) of Rule 4 prescribes that the emoluments drawn by an employee before the commencement of the 1996 Rules would be protected. Rule 7 of the 1996 Rules which deals with the staffing pattern prescribes that subject to the financial position of a Society, it may appoint employees as specified in Annexure I. Annexure -I appended to the 1996 Rules in turn contains the classification of Marketing -cum -Processing Societies i.e. category of Society, staff strength and scales of pay.
(2.) AFTER considering the representation of the Punjab Cooperative Marketing Society Employees Union, Punjab, the pay scales of the employees working in various Societies were revised. On 24.12.1998 (P -3), the Registrar -respondent No. 2 issued a letter to the effect that the existing pay scales given in Annexure -I of the 1996 Rules stands revised and the pay scales as per Punjab Fourth Pay Commission's report were granted w.e.f. 1.1.1998 with notional pay fixation from 1.1.1996 without payment of arrears. It has been further mentioned that the fixation of pay of employees of all Cooperative Marketing Societies in the State of Punjab in the revised scales of pay would be as per the Punjab Civil Services (Revised Pay) Rules, 1998. The grievance of the petitioners is that for a long period of 14 years no action was taken by the authorities to limit the staff expenditure to 50% of annual income of the Society. Suddenly, on 7.5.2010 the Deputy Registrar, Cooperative Societies, Amritsar -respondent No. 3 issued a circular to all the Assistant Registrars of the Cooperative Societies under the circle asking them to adhere to Rule 4(iv)(a) of the 1996 failing which action would be taken (P -4). It has also been submitted that on account of non -payment of their salaries due since 2005, the petitioners filed CWP Nos. 4679 and 5835 of 2010, which were disposed of by this Court directing the respondents to consider and decide their legal notice/representation. Subsequently, on 30.6.2010/2.7.2010, the Registrar -respondent No. 2 passed an order to the effect that the petitioners have already been paid in excess of the salary in terms of Rule 4(iv)(a) of the 1996 Rules (P -8). The accounts of the respondent No. 4 Society were also reaudited for the period from 1.4.2005 to 31.3.2009 and recommendation has been made to deduct excess salary drawn by the petitioners by enforcing Rule 4(iv)(a) [P -9].
(3.) IN the written statement filed on behalf of respondent Nos. 1 to 3, justifying their action it has been asserted that under Rule 28 of the 1963 Rules, the Registrar of Cooperative Societies Punjab is empowered to frame rules regarding the conditions of service of the employees of the Society(s). It has been stated that the service conditions of the employees of the Society(s) in the State of Punjab are governed by the rules framed by the Registrar -respondent No. 2 under Rule 28 of the 1963 Rules. These rules are in the, nature of executive instructions issued by the Registrar and it is within his competence to modify/amend the service rules of the employees. Therefore, there is no legal lacuna either in the action or the rules.;