Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 2532 (RAJ)

Dharmi Lal Dama v. State of Rajasthan

2008-11-18

GOVIND MATHUR

body2008
Honble MATHUR, J.—The Board of Management of the Rajasthan Janjati Kshetriya Vikas Sahakari Sangh Ltd. (hereinafter referred to as “the Sangh”) in its meeting dated 11.1.1993 resolved as follows:- ^^foLr`r fopkj foekZ ds ipkr~ ;g izLrko loZ lEefr ls ikfjr fd;k x;k fd jkT; Lrj fofHkUu lgdkjh laLFkkvksa ds fy, lsok fu;e Loh—r gksus rd jktlla?k deZpkfj;ksa ij jkT; lsok fu;e ykxw j[ks tkus ds fu.kZ; dk vuqeksnu fd;k tkrk gS ,oa jktlla?k ds deZpkfj;ksa ds fo:) vuqkklfud dk;Zokgh ds fy, jktLFkku vlSfud lsok,¡] oxhZdj.k] fu;a=.k ,oa vihy fu;e] 1958 ds rgr xr o"kksZ esa dh xbZ dk;Zokgh dh iqf"V ,oa Hkfo"; ds fy, mä fu;eksa dks ykxw j[kus dk vuqeksnu fd;k tkrk gSA** (Hereinafter referred to as “the resolution No.38”.) 2. The resolution aforesaid is still in currency and no service rules are yet approved to regulate service conditions of the employees of the Sangh that is a cooperative society registered under the Rajasthan Cooperative Societies Act, 1965 (now deemed to be registered under the Cooperative Societies Act, 2001 (hereinafter referred to as “the Act of 2001”). In light of the resolution No.38 the age of superannuation for its employees was also determined by the Sangh as per the provisions of the Rajasthan Service Rules, 1951 (hereinafter referred to as “the RSR”). 3. In exercise of the powers conferred by proviso to Article 309 of the Constitution of India the Governor of Rajasthan by a notification dated 24.5.2004 introduced certain amendments in Rajasthan Service Rules, relevant portion of that reads as follows:- “(iv)the existing Rule 56 shall be substituted by the following namely:- “56 The date of compulsory retirement of a Government servant would be the afternoon of the last day of the month in which he attains the age of 60 years. Provided that the provisions of age of compulsory retirement, as contained in this rule, shall not be applicable in the case of Government servants who are in service after attaining the age of compulsory retirement either on reemployment or on extension in service. Note:-1. A Government servant whose date of birth is the first of a month shall retire from service in the afternoon of the last day of the proceeding month on attaining the age of sixty years. 2. Note:-1. A Government servant whose date of birth is the first of a month shall retire from service in the afternoon of the last day of the proceeding month on attaining the age of sixty years. 2. In case the last day of the month happens to be a closed holiday, even then the Government servant should formally relinquish charge of the office in the afternoon of that day.” 4. In view of the existing provisions of Rule 56 of the RSR the age of superannuation for the employees to whom the provisions of RSR are applicable is sixty years. The Managing Director of the Sangh on 16.5.2008 ordered for retirement of the petitioner from service w.e.f. 31.7.2008 on attaining the age of 58 years on 10.7.2008. Being aggrieved by the same this petition for writ is preferred with a contention that as per resolution No.38 the service conditions of the employees of the Sangh are governed and regulated according to the provisions of the RSR and the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as “the Rules of 1958”), therefore, in view of the provisions of Rule 56 of the RSR the age of superannuation for the employees of the Sangh is 60 years and not 58 years. 5. Per contra, the stance taken by the Sangh is that the Finance Secretary of the Government of Rajasthan by a circular dated 10.8.2004 clarified that the notification dated 24.5.2004 making amendments with the provisions relating to superannuation in RSR shall not be applicable to the public sector undertakings, boards and government companies, thus, the age prescribed in Rule 56 of the RSR as a consequent to its amendment is not the age of superannuation for the employees of the Sangh and the petitioner, therefore, was rightly ordered to be retired from service w.e.f. 31.7.2008 on attaining the age of 58 years. It is also stated by counsel for the respondent Sangh that this Court in Mangilal Shah vs. Rajasthan Janjati Kshetriya Vikas Sangh Ltd. & Anr. It is also stated by counsel for the respondent Sangh that this Court in Mangilal Shah vs. Rajasthan Janjati Kshetriya Vikas Sangh Ltd. & Anr. (S.B. Civil Writ Petition No.6732/2005), decided on 2.5.2007, while dealing with the same issue held as follows:- "The State Government enhanced the superannuation age from 58 to 60 years for its employees, however, the respondents failed to enhance the superannuation age from 58 to 60 years and, therefore, the petitioner claims similar treatment to him which is provided to the employees of the State Government. Learned counsel for the respondents submits that though the State Government has enhanced the superannuation age of its employees from 58 to 60 years, but so far as the public sector undertakings are concerned, it is open for them to enhance or not to enhance the superannuation age as it was left open to all the public sector undertakings. The State Government issued a Circular dated 24.5.2004 directed all the public sector undertakings, while enhancing the superannuation age of its employees from 58 to 60 years, to consider the superannuation age of the employees of the public sector undertakings; however, the respondents have considered and decided to keep the superannuation age of its employees as 58 years and accordingly the petitioner has been superannuated on completion of 58 years. Thus, admittedly, so far as public sector undertakings are concerned, it is for them to decide whether to enhance or not the age of superannuation of their employees, but at any rate, the Circular of the State Government enhancing the age of superannuation of its employees has no application at all to the employees of public sector undertakings. The State Government by the Circular dated 24.5.2004 has made it clear leaving it open to the public sector undertakings to consider and decide the superannuation age of their employees, which, in the instant case, after having considered by the respondents, the respondents did not think it proper to enhance the superannuation age of their employees. The employees of the respondents are not the civil servants of the State Government. The respondent Sangh is competent to prescribe the pay scales, age of superannuation and the service conditions of its employees and, therefore, it cannot be said that the age of superannuation prescribed by the State Government shall automatically apply to the employees of the respondent Sangh.” 6. The respondent Sangh is competent to prescribe the pay scales, age of superannuation and the service conditions of its employees and, therefore, it cannot be said that the age of superannuation prescribed by the State Government shall automatically apply to the employees of the respondent Sangh.” 6. The judgment aforesaid was also followed in Gopallal Bhutra vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.522/2005), decided on 23.8.2007. 7. Heard counsel for the parties and considered the rival contentions. 8. The Sangh is a cooperative society and is having supervisory control of the State as per the provisions of the Act of 2001. Its board of management vide resolution No.38 dated 11.1.1993 adopted the RSR to govern and regulate service conditions of its employees. The resolution aforesaid is still in currency and no supplementary rules or regulations are yet approved to substitute the RSR. 9. With the factual position as above, the implication of the letter dated 10.8.2004 is to be examined as the sole stand of the respondent Sangh is that the Finance Secretary of the Government of Rajasthan by the circular aforesaid clarified that the age of superannuation prescribed by making amendment of Rule 56 of the RSR shall not be applicable to the employees of the semi government organisations, State enterprises, boards and the corporations, thus, the age of superannuation for the employees of the Sangh is 58 years. The letter dated 10.8.2004 reads as follows:- ^^jktLFkku ljdkj foÙk foHkkx ¼fu;e vuqHkkx½ fo"k; % jktdh; foHkkxksa ds vfrfjä vU; laLFkkvksa ds deZpkfj;ksa dh vf/kokf"kZdh vk;q ds lEcU/k esaA mijksä fo"k; esa funsZkkuqlkj ys[k gS fd jkT; ljdkj us lela[;d vf/klwpuk fnukad 24-5-2005 ds }kjk jkT; deZpkfj;ksa dh vf/kokf"kZdh vk;q 58 ls c<+kdj 60 o"kZ dh gSA ;g fu.kZ; vU; v)Z ljdkjh laxBu] jkT; ljdkjksa ds miØeksa ,oa fuxe rFkk cksMksZ ds deZpkfj;ksa ij ykxw ugha fd;k x;k gSA foÙk foHkkx }kjk Lok;rkklh laLFkkvksa ds deZpkfj;ksa dh vf/kokf"kZdh vk;q esa o`f) ds vknsk tkjh ugha fd;s x;s gSA vU; v)Z ljdkjh laxBu jkT; ljdkj ds miØeksa] fuxe cksMksZ ds deZpkfj;ksa dh vf/kokf"kZdh vk;q ds lEcU/k esa foÙk foHkkx dk vfHker fuEukuqlkj gS& 1. Government employees, work-charged employees and employees of Zila Parishads/ Panchayat Samitis are Covered by the Cabinet decision of 24.5.2004. 2. It is not appropriate for Companies in Poor financial health to increase the age of superannuation. Government employees, work-charged employees and employees of Zila Parishads/ Panchayat Samitis are Covered by the Cabinet decision of 24.5.2004. 2. It is not appropriate for Companies in Poor financial health to increase the age of superannuation. Government companies are advised to take into account their financial health, size of labour force (existing VRS scheme etc. and whether they have pension schemes before taking a decision regarding increase in the age of superannuation. In FDs few companies may not increase age of retirement as it does not benefit them. lwpukFkZ ,oa vko;d dk;Zokgh gsrq izsf"kr gSA g- ¼MkW- xksfoUn kekZ½ foÙk lfpo ¼ekxksZik;½ leLr vfrfjä eq[; lfpo@leLr izeq[k kklu lfpo@leLr kklu lfpo@leLr fofk"B kklu lfpo@v-kk-@Vh-i-1¼0½ foÙk@fu;e@98@ t;iqj] fnukad 10-8-2004** 10. No material is available on record on basis of that the respondent Sangh is treating itself as a public undertaking, State enterprise, board or a corporation but certainly it is a cooperative society created under the Act of State legislature. The provisions of the RSR are not applicable to any cooperative society ipso facto, however, if anybody adopts these rules then the position shall be different. In the present case the provisions of the RSR or the Rules of 1958 by their own force are not having application for the employees of the Sangh, but are made applicable to them by a valid resolution of the Board of Management of the Sangh i.e. the resolution No.38 dated 11.1.1993. The letter dated 10.8.2004 simply clarifies that the provisions of the RSR shall not be applicable ipso facto to certain bodies but that nowhere restricts any body from adopting or applying the provisions aforesaid for its employees. It is open for any body or everybody to adopt and apply certain provisions if not otherwise restricted by its own rules or regulations. The clarification made by the Finance Secretary of the Government of Rajasthan in no way stops application of the RSR or any other provision made by the State of Rajasthan, if already accepted and adopted by the body concerned including the Sangh. As such, it is not correct to say that the clarification made by the Finance Secretary to the Government of Rajasthan restricts the Sangh from application of the provisions of the RSR as amended vide notification dated 24.5.2004. 11. As such, it is not correct to say that the clarification made by the Finance Secretary to the Government of Rajasthan restricts the Sangh from application of the provisions of the RSR as amended vide notification dated 24.5.2004. 11. It is true that the judgment of this Court in Mangilal Shahs case (supra) is pertaining to the age of superannuation of an employee of the Sangh but the issue considered by the Court in that matter was in a different context. In the case aforesaid the employee claimed parity and similar treatment with the employees of the State Government and this Court held that the employees of the Sangh are not civil servants, therefore, the age of superannuation prescribed for the employees of the State shall not be applicable for them ipso facto. As a matter of fact in the case of Mangilal Shah (supra) this Court in quite unambiguous terms observed that “the Sangh is competent to prescribe the pay scales, age of superannuation and the service conditions of its employees”, and in the present case claim of the petitioner is based on the fact that the Sangh has prescribed the age of superannuation by resolution No.38 dated 11.1.1993. The petitioner is not claiming the status of civil servant and the parity with the employees of the State Government. 12. As stated earlier, the Sangh adopted the RSR to govern and regulate service conditions of its employees under a valid resolution and that resolution is having currency. All service conditions of the employees of the Sangh are governed by the RSR and their discipline is regulated by the Rules of 1958. If the stand of the respondents regarding non applicability of the amendment made in Rule 56 of the RSR is accepted, then it shall be having effect of the selective applicability of the RSR and that is not the intention of the resolution No.38 dated 11.1.1993 which adopts RSR in totality till approval of the service conditions framed by the Sangh. A Division Bench of this Court in Board of Indian Medicine, Rajasthan vs. Rajasthan Indian Medicine Board Karamchari Sangh and Another (2008(3)WLC (Raj.) 368 = 2008(3) RLW 2322 (Raj.)) examined the issue relating to applicability of the RSR to the employees of the Board of Indian Medicine, a statutory body created by the Rajasthan Indian Medicines Act, 1953 (hereinafter referred to as “the Act of 1953”). The provisions of Section 28 of the Act of 1953 provides that “the conditions of service of the Registrar and the other officers and servants of the Board appointed under Section 27 shall be the same as those of servants of the State Government of similar status, and all questions of their pay, allowances, promotion, leave, pension and provident fund shall be governed by the rules applicable to the later”. In view of the provisions of Section 28 of the Act of 1953 it was held by the Division Bench that once the State Government took a decision to enhance the age of superannuation for its employees, it shall be having application for the employees of the Indian Medicine Board ipso facto. 13. In the case in hand though no statute of legislature exists prescribing the age of superannuation, but a resolution of the Board of Management of the Sangh (resolution No.38) having nature similar to the provisions of Section 28 of the Act of 1953 is in operation, as such it can be safely said that the amendment introduced in Rule 56 vide notification dated 24.5.2004 being integral part of the RSR, is having application for employees of the Sangh in view of the resolution No.38. Accordingly, the age of superannuation for the employees of the Sangh is 60 years. 14. The another aspect of the matter is that if stand of the respondents is accepted then the natural corollary will be that Rule 56 of the RSR shall be inoperative for the employees of the Sangh. In that event there shall be no provision existing to settle the age of superannuation and retirement of an employee of the Sangh. In such circumstances, due to non-existence of any provision prescribing service condition for retirement from service, the retirement to the employees of the Sangh even at the age of 60 years shall not be correct. Such circumstance is protected under the resolution No.38 by adopting the RSR, hence the age of retirement for employees of the Sangh is 60 years. 15. As a result to the discussions aforesaid, this petition for writ deserves acceptance, hence is allowed. It is declared that the age of superannuation for the employees of the Sangh shall be as per Rule 56 of the RSR and that is 60 years. 15. As a result to the discussions aforesaid, this petition for writ deserves acceptance, hence is allowed. It is declared that the age of superannuation for the employees of the Sangh shall be as per Rule 56 of the RSR and that is 60 years. The order impugned dated 16.5.2008, retiring the petitioner from service w.e.f. 31.7.2008 on attaining the age of 58 years on 10.7.2008, is quashed. 16. No order to costs.