IMPORTANT POINT
Kurk Amins appointed on commission basis are civil servants but not entitled to salary or benefits unless absorbed into salaried positions.

JUDGMENT :

J.J. Munir, J.

1. Can there be a government servant appointed in accordance with rules against a sanctioned post, but remunerated otherwise than by a monthly salary, say a commission on the revenues that he collects for the Government? The further question involved is: Would a Kurk Amin, part of the cadre of Kurk Amin under Rule 2(d) of the Uttar Pradesh Co-operative Collection Fund and the Amins and Other Staff Service Rules, 2002, as amended by the Third Amendment Rules, 2005, appointed on commission basis, as distinguished from salary, be entitled to pension, gratuity, leave encashment and other post retiral benefits, like the other class of Kurk Amin appointed under the same Rules, but on a salary?

2. This writ petition has been instituted by Ram Kishore Awasthi, a Kurk Amin under the Cooperative Collection Scheme working on commission basis, since retired, praying that a mandamus be issued to the respondents to pay him salary, other consequential benefits and pension in terms calculated by the Assistant Commissioner & Assistant Registrar, Cooperatives, Shahjahanpur vide calculation chart dated 13.04.2016. The petitioner prays for the issue of a further writ, order or direction in the nature of mandamus ordering the respondents to treat the petitioner as a government servant and pay him all arrears of salary, besides service benefits and post retiral dues, including pension from the Government Treasury, reckoned with effect from the date of his initial appointment.

3. The petitioner was appointed a Kurk Amin on commission basis in the Department of Cooperatives of the State Government. He was terminated from service on certain charges vide order dated 30.06.2004 passed by the District Assistant Commissioner & Assistant Registrar, Cooperatives, Shahjahanpur. The petitioner challenged the order dated 30.06.2004 before the Uttar Pradesh State Public Services Tribunal vide Claim Petition No.1613 of 2011. The claim petition was allowed by the Tribunal vide judgment and order dated 10.05.2015 and the order of his termination from service quashed. A direction was issued to reinstate the petitioner in service along with continuity and consequential benefits within a period of two months of the date of production of a certified copy of the judgment before the Disciplinary Authority. The Disciplinary Authority was, however, left free to proceed afresh against the petitioner, if he so elected, in accordance with rules. In compliance with the Tribunal's judgment, the petitioner was reinstated in service vide order dated 31.08.2015 and retired from service on 31.01.2016, upon attaining the age of superannuation.

4. There is some kind of an issue raised by the petitioner that at the time of his entry into service, his letter of appointment dated 14.04.1983 did not mention the words 'commission basis', but it was introduced at the fag-end of his tenure by the District Magistrate while he was retiring from service, vide letter dated 30.01.2016. From the totality of the material and circumstances attending the parties’ case, there is not the slightest doubt that the petitioner was indeed appointed on commission basis and not as a salaried Amin. A letter dated 21.06.2017 was addressed by the Assistant Commissioner & Assistant Registrar, Cooperatives, Shahjahanpur to the petitioner with reference to a letter dated 06.06.2017 addressed by the petitioner to the District Magistrate, informing the petitioner that he had sought the directions of the Commissioner & Registrar, Cooperatives, regarding regularization of services of Amin governed by the Uttar Pradesh Co-operative Collection Fund and the Amins and Other Staff Service Rules, 2002 (for short, 'the Rules of 2002').

5. The petitioner further refers to a letter of the Additional Commissioner (Banking), Cooperative Societies, U.P., Lucknow, directing all District Assistant Commissioners, Cooperatives regarding the terms of appointment of Kurk Amin in Cooperative Societies, which the pet