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2010 DIGILAW 676 (ALL)

BHOPAL SINGH v. STATE OF U. P.

2010-02-23

ARUN TANDON

body2010
JUDGMENT Honble Arun Tandon, J.—Petitioner before this Court is employed as Junior Assistant Clerk in Ganna Kisan Sansthan, Muzaffar Nagar. The said Sansthan is run and managed by Lal Bahadur Shastri Ganna Kisan Sansthan, a Society duly registered under the Societies Registration Act. The petitioner is aggrieved by the notice dated 8.9.2009 informing the petitioner that he shall attain the age of superannuation i.e. 58 years on 28.2.2010 and shall retire from service accordingly. The notice so issued to the petitioner has been challenged by means of the present writ petition. 2. Shri Rakesh Pandey, counsel for the petitioner submits that Lal Bahadur Shastri Ganna Kisan Sansthan is an State within the meaning of Article 12 of the Constitution of India inasmuch as State of U.P. exercises all pervasive control over the said Society. For the purpose, reliance has been placed upon the judgment of the Honble Supreme Court of India in Civil Appeal No. 1572 of 2009 (State of U.P. v. Radhey Shyam Rai) decided on 6.3.2009. 3. He submits that under the Memorandum of Association, the power to lay down the terms and conditions of the employees of the Sansthan is with the governing body (Ref. Clause 29 (a) & (b) of the Memorandum of Association. In exercise of powers under the said Clause the Society has framed Service Rules known as Uttar Pradesh Ganna Kisan Sansthan Sewa Niyamawali, 1979. Rule 7.7 of the said Rules specifically lays down the age of superannuation of Class III employees as 58 years. It is not in dispute that the petitioner shall attain the age of 58 years on or before 28.2.2010. What is being contended before this Court is that the Board in its meeting held on 26.5.2006 passed a resolution enhancing the age of retirement of the employees of the Sansthan from 58 years to 60 years. However a rider was added that approval be obtained from the State Government. Since the State Government has not granted the approval, Sansthan is retiring its employees at the age of 58 years. 4. However a rider was added that approval be obtained from the State Government. Since the State Government has not granted the approval, Sansthan is retiring its employees at the age of 58 years. 4. Counsel for the petitioner submits that under law no approval from the State Government is required for amending the service conditions in exercise of powers under Clause 29 (a) and (b) of Memorandum of Association and, therefore, the latter part of the resolution be severed from the earlier part of the Resolution whereby age of retirement has been enhanced to 60 years. He states that the provision fixing the age of retirement as 60 years became operative in the eyes of law on the date the resolution was passed i.e. 26.5.2006 irrespective of the approval of the State Government and, therefore, petitioner cannot be retired at the age of 58 years. 5. I have heard learned counsel for the parties and have gone through the records of the present writ petition. 6. It is no doubt true that under the Memorandum of Association, the power to lay down the condition of employment is with the governing body and the governing body in its meeting held on 29.6.1979 had framed the Uttar Pradesh Ganna Kisan Sansthan Sewa Niyamawali, 1979. Clause 7.7 of the Service Rules provides the age of retirement as 58 years. The issue up for consideration is qua the effect of Resolution No. 8 in the meeting of the governing body of the Society held on 6.5.2006 heavily relied upon by the counsel for the petitioner. For appreciating the true import of the Resolution, it would be appropriate to reproduce the same in its entirety. The Resolution reads as follows : "Sarva Sammat Se Sansthan Karmiyon Ki Sewanivrit Aayu 58 Varsh Se Badhakar 60 Varsh Kiye Jane Ki Saidhantik Swikrit Pradan Karte Hue Shasan Ke Anumati Hetu Sanstuti Ki Gayi." 7. From a simple reading of the Resolution, it would be apparently clear that the Governing Body on principle agreed to enhance the age of retirement of its employees to 60 years but no final decision was taken inasmuch as the Board of governing body was of the opinion that an approval be obtained from the State Government qua such a decision and accordingly recommended the same. 8. 8. It is not in dispute that the State Government exercise all pervasive control upon the said Society as has been stated by the counsel for the petitioner himself. If for some reasons known to the Governing Body, it passed a resolution to obtain prior permission from the State Government before enhancing the age of retirement from 58 years to 60 years, it cannot be said that the Society has committed any illegality. The Resolution passed does not violate any of the clauses of the Memorandum of Association. The plea that the second part of the Resolution is severable from the first part of the Resolution, does not appeal to the Court. The Resolution has to be read as a whole and since on simple reading of the Resolution, this Court finds that no final decision has been taken by the Governing Body and it made its recommendation only for approval of the State Government, the petitioner is legally not justified in contending that the age of retirement stands extended to 60 years. 9. In the totality of the circumstances as noticed herein above, this Court records that no amendment in the age of retirement of the employees of Sansthan as per Clause 7.7 of the Uttar Pradesh Ganna Kisan Sansthan Sewa Niyamawali, 1979 has been effected till date, the resolution dated 6.5.2006 is only recommendatory in nature. The petitioner has rightly been served with the notice that he will retire at the age of 58 years on 28.2.2010. 10. The writ petition is dismissed. 11. Shri A.K.Srivastava, Advocate is present on behalf of the respondents. ————