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2014 DIGILAW 2123 (RAJ)

Jagdish Prasad Gupta v. State of Rajasthan

2014-12-15

BELA M.TRIVEDI

body2014
JUDGMENT 1. - Both the petitions involved similar issues and hence were heard together and are being decided simultaneously by way of this common order. 2. In both the petitions, the petitioners have challenged the order dated 2/9/2013 issued by the respondents retiring the petitioners and have sought direction against the respondents to enhance the age of superannuation of the petitioners from 58 to 60 years with all consequential benefits. 3. The facts in nutshell are that the petitioners were the employees of the respondent No.4 - Kota Zila Dughadh Utpadak Sahakari Sangh Limited (hereinafter referred to as 'the Milk Society'). According to the petitioners, their service conditions are similar to the employees of the State Government, and therefore, should be governed by the Rajasthan Service Rules ,1951. Prior to the year 2004, the age of superannuation as per Rajasthan Service Rules was 58 years, which has been increased to 60 years as per the notification dated 24/5/2004. The respondent-Registrar therefore exercising the powers under Rule 39 of the Rajasthan Cooperative Societies Rules, 2003 (hereinafter referred to as 'the Rules'), framed under the Rajasthan Cooperative Societies Act, 2001 (hereinafter referred to as 'the said Act'), had issued the order dated 17/9/2008, directing the Cooperative Societies to take decision for the enhancement of the age of superannuation from 58 to 60 years, if the respective society had not incurred the loss in the preceding three years and if the strength of the employees did not exceed the sanctioned staff. It is the further case of the petitioners that accordingly the respondent No.5 RCDF which was the governing body of the respondent Milk Society had issued the order dated 19/6/2013 deciding to increase the age of superannuation from 58 to 60 years for its employees with effect from 12/6/2013. According to the petitioners though the respondent Milk Society had not incurred loss in the preceding three years and though the strength of the existing staff did not exceed the sanctioned staff, the respondent/society in violation of the said Circular dated 17/9/2008 issued by the respondent Registrar, suddenly issued the order dated 2/9/2013 retiring the petitioners on the ground of having reached the age of superannuation at 58 years. Though the petitioners had made the representation to the respondents for increasing the age of superannuation, the same was not responded to and hence they had preferred the writ petition being No.5931 of 2014 before this Court which petition came to be disposed of on 26th May, 2014, whereby the respondents were directed to decide the representations of the petitioners and to convey the said decision to the petitioners. The petitioners' representation however was turned down by the respondents vide order dated 28/5/2014 retiring the petitioner Jagdish Gupta with effect from 31/5/2014. Being aggrieved by the said action of the respondents, the petitioners have filed the present petitions. 4. It appears that the coordinate bench in the petition being No.7965/2014 vide the order dated 21/7/2014 directed the respondents that the petitioners shall not be retired from service and they shall be allowed to continue till attaining the age of 60 years or subject to any other order that may be passed by the Court in the present petition. So far as the petition No.8852/2014 is concerned, the Court vide order dated 25/8/2014 had directed that the petitioner shall be allowed to continue in service. The said petitions have been resisted by the respondents by filing their respective replies in which it has been contended inter-alia that the decision of the respondent society with regard to fixing the age of superannuation is a policy matter, and the Court should not interfere with the same. It has also been contended that Jagdish Prasad had already retired from service on 31/5/2014 on attaining the age of 58 years, i.e. prior to passing of the order dated 21/7/2014, and had also taken all the retiral benefits, and that the petitioner Mehar Bhan Singh and Badrilal were to retire on 31/7/2014 and 31/8/2014 respectively, however on account of the exparte orders passed by the Court on 21/7/2014 & 25/8/2014, they are continued in service. It is also contended that the respondent society is governed by the bye-laws, and that the service conditions of the employees are determined as per the said bye-laws only, and that no amendment has been made so far in the bye laws for increasing the age from 58 to 60 years. It is also contended that the respondent society is governed by the bye-laws, and that the service conditions of the employees are determined as per the said bye-laws only, and that no amendment has been made so far in the bye laws for increasing the age from 58 to 60 years. According to the respondent society, even as per circular dated 17/9/2008, the Registrar had directed the societies to take their own decision as regards the age of superannuation taking into consideration the interest of the society, and accordingly the management of the society had taken the decision on 10/6/2014 retaining the age of superannuation at 58 only. 5. It has been sought to be submitted by the learned counsel Mr. Narendra Singh Hada for the petitioner that since the respondent society had not incurred the losses in the preceding three years, and the strength of staff also did not exceed the sanctioned staff, the respondent ought to have taken the decision to increase the age of superannuation as per the order dated 17/9/2008 issued by the Registrar. He also submitted that the Apex Society i.e. RCDF had also taken the decision to increase the age of superannuation of its employees from 58 to 60 years, and as per the amended Rajasthan Service Rules also, the age has been increased to 60 years, however, the respondent society has taken the decision arbitrarily not to increase the said age. According to him, even in the impugned decision, the respondent society has not given any reason as to why the similar treatment as are being given to the employees of RCDF and State Government should not be afforded to the employees of the respondent society. 6. However, the learned Senior Counsel Mr. Garg for the respondent society has submitted that the respondent society having taken the decision not to increase the age of superannuation, after taking into consideration the interest of the society, and the said matter being a policy matter, the Court should not interfere with the same. The learned counsel has relied upon the various decisions of the Apex Court in support of his submissions. The learned counsel has relied upon the various decisions of the Apex Court in support of his submissions. He also pressed into the service various provisions of the said Act and the Rules to submit that unless necessary amendment is made in the bye laws and such amendment is approved by the Registrar, the service condition of the employees cannot be changed, much less the age of superannuation could be enhanced. 7. Before adverting to the rival contentions raised by the learned counsels for the parties, it would be beneficial to refer to the legal position settled by the Apex Court in the catena of decisions as regards the scope of interference by the Courts in the matter of policy more particularly with regard to the extension of the age of superannuation. In case of B. Bharat Kumar & Ors. v. Osmania University & Ors., (2007) 11 SCC 58 , the Apex Court has held in para 19 as under:- "19. Learned counsel also argued, to a great extent, the desirability of the age of superannuation being raised to 60 or 62 as the case may be. We again reiterate that it is not for this Court to formulate a policy as to what the age of retirement should be as by doing so we would be trailing into the dangerous area of the wisdom of the Legislation. If the State Government in its discretion, which is permissible to it under the scheme, decides to restrict the age and not increase it to 60 or as the case may be 62, it was perfectly justified into doing so." 8. Relying upon the said decision, the Apex Court in case of Indian Institution of Technology, Kanpur v. Raja Ram Verma & Ors., (2010) 14 SCC 86 , has observed in para 27 as under:- "27. It has been held by this Court, more than once, that prescribing the age of retirement is a managerial function and such decisions are taken by the management of the concerned institute on consideration of various aspects. One of the most predominant consideration is the need of the institute, its functional requirements and efficient management of its manpower. These are the areas where the Court should not normally venture, and the judgment in this area should be best left with the authorities who are incharge of running or managing such institutes. One of the most predominant consideration is the need of the institute, its functional requirements and efficient management of its manpower. These are the areas where the Court should not normally venture, and the judgment in this area should be best left with the authorities who are incharge of running or managing such institutes. However, if the Court finds that the policy in fixing the age of retirement was not based on any intelligible criterion or is founded on such a basis which are patently unreasonable and perverse, the Court has a bounden duty to interfere and direct the concerned management to proceed on a reasonable basis." 9. Even in the case, wherein the retirement age was reduced by the Government from 58 to 55, the Apex Court in case of K. Nagraj & Ors. v. State of Andhra Pradesh & Anr., AIR 1985 Supreme Court 551 , while negativing the submission to the effect that by reducing the age of retirement, the Government employees were deprived of their right to livelihood, had observed that if a rule of retirement can be deemed to deprive the persons of his right to livelihood, it will be impermissible to provide for a age of retirement at all. That will be contrary to public interest because the State cannot afford the courtesy of allowing its employees to continue in service after they have passed the point of pick performance. Rules of retirement do not take away the right of a person to his livelihood, they limit his right to hold office to a stated number of years. 10. In case of Harwindra Kumar v. Chief Engineer, Karmik & Ors., 2005 (13) SCC 300 , the Apex Court held interalia that so long as the statutory regulations are not amended, the service conditions of the employees of the Nigam, including their age of superannuation, could not be altered. 11. In the light of the aforestated settled legal position, let us examine the relevant provisions of the said Act and of the Rules 2003 framed thereunder. As per Section 7 of the said Act, the registration of a Cooperative Society would render it a body cooperate by the name under which it is registered, having perpetual succession and a common seal. As per Section 7 of the said Act, the registration of a Cooperative Society would render it a body cooperate by the name under which it is registered, having perpetual succession and a common seal. As per Section 8, the functions of every cooperative society are regulated by a set of bye laws registered under the said Act, with regard to the subject matter enumerated in Schedule B, and no amendment therein is valid unless such amendment has been registered by the Registrar under the provisions of the Act. Schedule B provides for the subject matter of the bye laws, which include conditions of service of the employees. Further Section 123 empowers the State Government to make Rules to carry out the purposes of the Act, with regard to the matters mentioned therein, including the matter with regard to the conditions of services of the employees of the Society. The Rule 39 of the said Rules provides that the conditions of service including discipline and control of the employees of the societies shall be such as specified by the Registrar. 12. In view of the above statutory provisions, it is clear that the respondent Society which is a Cooperative Society registered under the said Act, is governed by the set of bye-laws with regard to the subject matter enumerated in Schedule-B of the said Act, and that no amendment in the said bye laws would be valid unless the said amendment is registered by the Registrar under the said Act. It is also clear that the subject matter with regard to the conditions of service of the employees, is one of the subject matters which the society may incorporate in its bye laws. Further, as per Rule-39 of the said Rules, notwithstanding contained in such bye laws, conditions of service including the discipline and control of the employees of the societies would be only such which are specified by the Registrar. It is not disputed that bye-laws of the Society in question have not been amended for enhancing the superannuation age of its employees from 58 to 60 years, nor the respondent-Registrar has specified such service condition for the employees of the society as contemplated in Rule 39 of the said Rules. 13. It is not disputed that bye-laws of the Society in question have not been amended for enhancing the superannuation age of its employees from 58 to 60 years, nor the respondent-Registrar has specified such service condition for the employees of the society as contemplated in Rule 39 of the said Rules. 13. It was sought to be contended that in similar matters pertaining to the employees of the other Milk Society, the Division Bench of this Court in case of Dairy Karamchari Union & Ors v. R.K. Trashal & Ors, D.B. Civil Contempt Petition No.156/2011, and others had held that since the respondent Milk society was the member of the respondent RCDF, which is the Apex Society, the decision of RCDF would be binding to the milk society. According to the learned counsel for the petitioners, since the RCDF had taken the decision to enhance the age of superannuation, the said decision would also be binding to the respondent-Milk Society. In this regard, it is required to be noted that in the said decision, the Division Bench had directed the RCDF and the Societies to consider the question of enhancing the age of superannuation from 58 to 60 years, however the said order having been challenged by one Ajmer Zilla Dugdh Utpadak Sahakari Samiti before the Apex Court by filing the Civil Appeal No.7946 of 2012, the Apex Court had modified the said order of the Division Bench and directed the said Ajmer Zilla Dugdh Utpadak Sahakari Samiti, Rajasthan Cooperative Dairy Federation and Others to reconsider the issue of enhancement of age from 58 to 60 years, bearing in mind the communication of the Registrar dated 17/9/2008, and the clarification made thereof. The Apex Court in the said order had also made it clear that it shall be open for the federation and the societies to take final decision without being influenced by the decision of the High Court. In view of the said order passed by the Apex Court, there remains no doubt that the observations made by the Division Bench to the effect that RCDF was the Apex Society and the various societies being the signatories of the RCDF were bound by the decision of the RCDF, were not accepted, and the societies had to take the decision for enhancement of the superannuation age of their employees taking into consideration the communication of the Registrar dated 17.09.2008 only. If the Apex Court had accepted the contention that the decision of the RCDF was binding to all the societies who were its members, the Apex Court would not have directed the societies to take decision in the light of the communication of the Registrar dated 17.09.2008. Even otherwise, as per the definition contained in Section 2(aa) of the said Act, the Apex Society means a society whose core object is to provide facilities for the operation of other societies affiliated to it. There is nothing in the said Act to suggest that the decisions taken by the Apex Society would be binding to the other societies affiliated thereto, more particularly the decision pertaining to the condition of service of the employees of the other societies affiliated to it. 14. So far as facts of the present case are concerned, the petitioner Jagdish Prasad had already retired and had taken all the retiral benefits also. The other two petitioners Mehar Bhan Singh and Badrilal were to retire on 31/7/2014 and 31/8/2014 respectively, however by virtue of the exparte ad-interim orders, they have been continued in service. In view of the aforestated discussion, the respondent society having taken decision not to increase the age of superannuation, the petitioners have no right to continue in service. It is true that the respondent society is not incurring losses, and the strength of the staff is also within the sanctioned limit, however the Board of Directors of the respondent society taking into consideration the interest of the society has taken the decision not to increase the age of superannuation of its employees, which decision could not be said to be arbitrary or illegal. Even otherwise, as per the settled legal position stated hereinabove, prescribing age of superannuation is a matter of policy decision and the Courts should not interfere in such policy decisions, which are taken by the Management of the concerned Institute after considering various aspects. 15. In that view of the matter, it is held that the petitioners have no right to continue in the service of the respondent society, after having reached the age of superannuation prescribed in the bye-laws of the society. The petitions therefore being devoid of merits deserve to be dismissed and are accordingly dismissed. Copy of this order be placed in each of the petitions. *******