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2015 DIGILAW 1452 (RAJ)

Nathu Lal Ameta v. The State of Rajasthan

2015-08-04

SANDEEP MEHTA

body2015
JUDGMENT 1. - By way of the instant writ petition, the petitioner has approached this Court praying for a direction to the respondent Rajsamand District Cooperative Land Development Bank (hereinafter referred to as the Bank) for enhancing the retirement age of the petitioner from 58 years to 60 years pursuant to a order/notification/circular dated 17.9.2008 issued by the Registrar, Cooperative Societies, State of Rajasthan. It is asserted that as per the notification, such cooperative societies, which were running in net profits for the preceding three years and the sanctioned staff strength was not exceeded, were required to conduct an exercise for increasing the retirement age of their employees from 58 years to 60 years. 2. The petitioner has approached this Court contending that his employer, being the Rajsamand District Cooperative Land Development Bank was also running in net profits for the three years preceding to the order dated 17.9.2008 and was also running well below the sanctioned staff strength and thus, it resolved to increase the retirement age of its employees to 60 years in compliance of the above circular. The resolution was thereafter forwarded to the Registrar for approval in accordance with the aforesaid circular dated 17.9.2008. The petitioner has set up a case that there was no requirement for the Bank to seek approval of the Registrar because as per Clause 2(30 of the order dated 17.9.2008, the societies, which were running in net profits for three continuous preceding years, vide order dated 17.9.2008, were authorised to take a decision for increasing the retirement age of their employees from 58 years to 60 years at their own level. But despite that, the Bank forwarded its resolution to the Registrar along with the Profit and Loss Account of the Bank for the preceding three years by communication dated 22.12.2008. The Assistant Registrar also appended his note to the proceedings expressing his consent with the resolution. However, on 12.2.2009, the Joint Registrar, Cooperative Societies remanded the matter back to the Assistant Registrar with the direction to submit his detailed comments along with the proposal. It is the admitted case of the parties that the petitioners date of birth is 15.2.1951 and thus, he was to attain the unaltered superannuation age of 58 years by the end of February 2009. The Assistant Registrar in turn forwarded his comments to the Joint Registrar by letter dated 19.2.2009. It is the admitted case of the parties that the petitioners date of birth is 15.2.1951 and thus, he was to attain the unaltered superannuation age of 58 years by the end of February 2009. The Assistant Registrar in turn forwarded his comments to the Joint Registrar by letter dated 19.2.2009. In para No. 9 of the comments, it was mentioned that the Bank was in losses of Rs. 126.96 lacs in the year 2007-08 but if accumulated profits were taken into account, then the Banks fund showed net profit of Rs. 26.78 lacs in the year 2007-08 also. Accordingly, it was recommended to increase the retirement age of the employees from 58 years to 60 years. The petitioner has set up a case that no action was taken pursuant to the said recommendations of the Assistant Registrar and accordingly the petitioner faced imminent retirement at 58 years despite his right to continue in service till 60 years, upon which, he rushed to this Court by way of the instant writ petition. It is relevant to note here that the record of the stay application is not tagged with the file but it appears that an interim stay order was issued in favour of the petitioner on 25.2.2009. However, the interim order was finally vacated on 9.3.2009 where after, the petitioner admittedly retired from service. 3. The respondents have filed a reply to the writ petition, wherein the copies of a criminal case instituted against the petitioner for the offences under the Prevention of Corruption Act are annexed. It is mentioned in the reply that the petitioner has tried to mislead the Court regarding his re-induction in service. As a matter of fact, pursuant to his retirement, the petitioner was appointed on contractual basis in accordance with the procedure adopted by the Society to re-employ the retired officers on fixed payment basis. The petitioner was re-employed through a contract on a fixed salary of Rs. 7000/- per month, but thereafter, his services were terminated on 4.12.2010 on account of his remaining will fully absent from duty without any information. The petitioner has along with an additional affidavit placed on record a copy of the order dated 30.10.2009 issued by the bank as per which the petitioner, who had been suspended on 16.11.2002 on account of registration of a criminal case was reinstated in service. The petitioner has along with an additional affidavit placed on record a copy of the order dated 30.10.2009 issued by the bank as per which the petitioner, who had been suspended on 16.11.2002 on account of registration of a criminal case was reinstated in service. Another order dated 21.7.2010 issued by the Joint Registrar, Cooperative Societies, whereby the proposal sent by the bank to increase the age of superannuation of its employees from 58 years to 60 years was accepted, has also been placed on record with the additional affidavit. 4. Learned counsel for the petitioner vehemently contended that looking to the fact that the Bank was running in net profits in the preceding three years before the issuance of the order dated 17.9.2008, it was incumbent upon the Bank to take a decision at its own level to increase the superannuation age of its employees from 58 years to 60 years, he contended that the action of the respondent bank in forwarding its recommendations to the Joint Registrar and waiting for its approval was absolutely unwarranted in view of the clear language of the circular dated 17.9.2008. He thus, urged that the writ petition deserves acceptance and the petitioner should be treated retired from the services of the Bank upon attaining the age of 60 years and to be extended with all consequential benefits. 5. Per contra, Shri R.S. Rathore and Ms. Kusum Rao, learned AGC and learned counsel representing the respondents vehemently opposed the submissions advanced by the learned counsel for the petitioner. They urged that the interim stay order granted to the petitioner was not continued by this Court after 9.3.2009 and thus, he was retired from service w.e.f. 20.3.2009. They thus urged that the petitioner cannot be treated to have been notionally continued in service for a single day thereafter. Thus, they urged that there is no merit in the writ petition and the same deserves to be dismissed. 6. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have gone through the material available on record. 7. Thus, they urged that there is no merit in the writ petition and the same deserves to be dismissed. 6. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and have gone through the material available on record. 7. The order dated 17.9.2008 upon which much stress was laid by the petitioners counsel is quoted here in below for the sake of convenience:- " foHkkx }kjk ,rn~lEcU/k esa iwoZ esa tkjh leLr vkns'kksa dks vfryaf?kr djrs gq, jktLFkku lgdkjh lkslkbVh fu;e] 2003 ds fu;e 39 ( 4 ) ds vUrxZr jkT; dh fofHkUu lgdkjh lkslkbfV;ksa ds dkfeZdksa ( vf/kdkfj;ksa@deZpkfj;ksa ) dh vf/kokf"kZdh vk;q ds lEcU/k esa fuEukafdr funsZ'k tkjh fd;s tkrs gSa%& 1- jkT; dh ,slh lgdkjh lkslkbfV;ka] ftuesa jkT; ljdkj dh fgLlk iwath vFkok vuqnku vkfn ds :i esa jktdh; fgr fufgr ugha gSa] muesa laLFkk dk lapkyd e.My laLFkk ds fgrksa dks n`f"Vxr j[krs gq, vius Lrj ls vius dkfeZdksa dh vf/kokf"kZd vk;q 58 o"kZ ls c<+kdj vf/kdre 60 o"kZ rd djus ds lEcU/k esa fu.kZ; ys ldsxkA 2- jkT; dh ,slh lgdkjh lkslkbfV;ka] ftuesa jkT; dh fgLlk iwath vFkok vuqnku vkfn ds :i esa jktdh; fgr fufgr gSa] muesa dkfeZdksa dh vf/kokf"kZdh vk;q ds lEcU/k esa fuEukuqlkj izfdz;k viuk;h tkuh visf{kr gS%& ( d ) ,slh lgdkjh lkslkbfV;ka] ftuesa foxr rhu foRrh; o"kksZa esa gkfu ugha jgh gS vFkkZr~ muesa foxr rhu foRrh; o"kksZa esa fujUrj 'kq) ykHk jgk gS rFkk lkFk gh ftuesa dk;Zjr dkfeZdksa dh la[;k muds Lohd`r LVkWQ LV~zsUFk ls vf/kd ugha gS] mudk lapkyd e.My laLFkk ds fgrksa dks n`f"Vxr j[krs gq, vius Lrj ls vius dkfeZdksa dh vf/kokf"kZdh vk;q 58 o"kZ ls c<+kdj vf/kdre 60 o"kZ rd djus ds lEcU/k esa fu.kZ; ys ldsxkA ( [k ) ,slh lgdkjh lkslkbfV;ka] ftuesa foxr rhu foRrh; o"kksZa esa ls fdlh Hkh o"kZ gkfu dh fLFkfr jgh gks] vFkok ftuesa dk;Zjr dkfeZdksa dh la[;k laLFkk dh Lohd`r LVkQ LVz~sUFk ls vf/kd gS] mudk lapkyd e.My ;fn laLFkk ds dkjksckj vkfn O;kid fgrksa dks n`f"Vxr j[krs gq, vius dkfeZdksa dh vf/kokf"kZdh vk;q 58 o"kZ ls c<+kdj vf/kdre 60 o"kZ rd djus dh vuq'kalk djrk gS] rks lapkyd e.My ds bl vk'k; ds izLrko dks laLFkk dk eq[; dk;Zdkjh fu/kkZfjr izk:i esa v/kksgLrk{kjdrkZ }kjk izkf/kd`r vf/kdkjh dks izsf"kr djsxkA izkf/kd`r vf/kdkjh izkIr izLrkoksa ds lEcU/k esa foHkkxh; funsZ'kksa dk ikyu djrs gq, vfxze vko';d dk;Zokgh djsaxsA ,slh laLFkkvksa ds fy, laLFkk dh vksj ls izsf"kr fd;s tkus okys izLrko dk izk:i ,oa izkf/kd`r vf/kdkjh }kjk dh tkus okyh dk;Zokgh ds lEcU/k esa i`Fkd ls funsZ'k tkjh fd;s tk jgs gSaA " 8. Upon going through the language of aforesaid circular, it is evident that as per Clause 2 ( d ) of the above order, such societies which were running in net profits for each of the preceding three financial years were authorised to enhance the retirement age of their employees at their own level. However, as per Clause 2 ( d ) where the Cooperative Society in question was in loss for any of the preceding three years and despite that looking to its business and institutional interest, it was given discretion to take a resolution for enhancement of the retirement age of its employees and forward the same to the officer authorised by the Registrar, who was thereafter required to pass an appropriate order in accordance with the departmental guidelines. The Joint Registrar, Cooperative Societies was later on authorised by the Registrar, Cooperative Societies to pass appropriate orders on the recommendations received from the societies falling within the domain of Clause 2 ( d ) of the circular. As per the accounts statements for the preceding three financial years, the Bank was running in net profits for the financial years 2005-06, 2006-07, however, it accrued losses of Rs. 126 lacs for the financial year 2007-08. Therefore, it is clear that the Bank was not running in net profits for each of the three preceding years as per Clause 2 ( d ) of the order dated 17.9.2008. In this scenario, action on the Banks recommendation could only have been taken under Clause 2 ( d ) The respondent Bank took a resolution under Clause 2 ( d ) and forwarded it to the Joint Registrar directly by a letter dated 22.1.2009 without seeking comments of the Assistant Registrar. The matter was remitted back to the Assistant Registrar again forwarded the Banks resolution to the Joint Registrar along with his comments. The Joint Registrar then passed the order dated 21.7.2010 (Annex. 10 which has been placed on record by the petitioner along with an additional affidavit) accepting the proposal to enhance the age of the Banks employees from 58 years to 60 years. In the intervening period, the petitioner had already been superannuated and therefore, he cannot claim benefit of the above order, which in the opinion of this Court, would operate prospectively. In the intervening period, the petitioner had already been superannuated and therefore, he cannot claim benefit of the above order, which in the opinion of this Court, would operate prospectively. That apart, admittedly, the petitioner was facing proceedings for the offences under the Prevention of Corruption Act during the period between 16.11.2002 to 17.4.2009. He was placed under suspension and was thereafter acquitted by the trial Court on 17.4.2009. By that date, he had already crossed the age of superannuation. Thus, looking to the above factual scenario, no equities operate in the petitioner's favour so as to exercise the extraordinary writ jurisdiction of this Court for giving a direction to give retrospective effect to the aforesaid order of age enhancement and to extend the notional benefits of extended service to the petitioner. 9. As a consequence of the above discussion, there is no merit in the writ petition and the same is, hereby, dismissed.No order as to costsPetition Dismissed. *******