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2018 DIGILAW 105 (JK)

Narain Parshad Wazir v. State

2018-02-26

RAMALINGAM SUDHAKAR

body2018
JUDGMENT : 1. The petitioners, in both the writ petitions, seek the same reliefs. Facts are taken from the writ petition (SWP No.2803/2016) and in this writ petition, reliefs sought for by the petitioner are as follows:- (i) Mandamus, directing the respondent No.2 to amend Rule 13 of the Jammu and Kashmir Co-operative Societies Service Rules 1988 enhancing superannuation age from 58 years to 60 years; (ii) Mandamus, directing the respondents No.3 & 4 not to retire the petitioner on his attaining the age of 58 years and to allow him to remain in service till he attains the age of 60 years; (iii) Certiorari, quashing order No.55-JAKFED of 2016 dated 13.06.2016, so far it pertains to the retirement of the petitioner. 2. The issue raised in both the writ petitions relating to claim for enhancing the retirement age from 58 to 60 years of the employees of JAKFED. This issue was already considered by this Court in a batch of writ petitions titled Nazir Ahmad Wani Vs. State of J&K & ors. and other clubbed matter (SWP No.3478/2014). This Court in Paragraph Nos.23 to 28 has held as follows:- “23. The plea that age of retirement of 58 years was fixed under SRO 233 of 1988 at 58 years was on account of Government Employees also then retiring at the age of 58 years and in view of the recent decision of the Government of J&K to raise the age of superannuation of Government Employees vide SRO 164 of 2014 dated 05.06.2014 to 60 years (vide Annexure-F), there was no reason to discriminate between employees of the Government and JAKFED; and that in the circumstances, representation Annexure-G had been made to the Minister for Cooperatives J&K, but no action has been taken on the aforesaid representation and since the petitioner was to retire shortly thereafter and being aggrieved of enforcement of SRO 233 of 1988, non-adherence to Service Rules of 1975 as amended in the year 1987, the petitioner(s) had invoked the writ jurisdiction of this Court. However, plea is devoid of any merit. The mere fact that the age of superannuation has been raised vide Annexure-F dated 05.06.2014 by the Government for government servants from 58 to 60 would not of its own confer a right on the employees of JAKFED to seek a direction to be allowed to continue in service upto the age of 60 years. The mere fact that the age of superannuation has been raised vide Annexure-F dated 05.06.2014 by the Government for government servants from 58 to 60 would not of its own confer a right on the employees of JAKFED to seek a direction to be allowed to continue in service upto the age of 60 years. The decision, whether the age of retirement of its employees is to be 58 or 60 years, is to be regulated in terms of Bye-Law 31 of the Bye Laws of the Jammu & Kashmir Cooperative Supply & Marketing Federation Ltd., exclusively as per decision of the Managing Committee of JAKFED. In terms of order (Annexure-E) dated 30.04.1992 in SWP No.1551/2015, it is clear that the Managing Committee of JAKFED took a decision on 27.12.1991 to fix the age of superannuation of its employees at 58 years instead of 60 years in its meeting held on 27.12.1991. 24. That as per the objections filed, apart from taking other preliminary objections, it has been contended that it was only the General Body/Board of Directors, which was the competent authority to take decision with regard to age of retirement of its employees and mere fact that SRO 164 of 2014 provided for retirement age of 60 years to government employees would not confer any right in favour of the petitioners. Besides, the age of superannuation of employees of JAKFED, which had been increased to 60 years pursuant to decision dated 14.07.1987 i.e. Annexure-C in SWP No.1551/2015 was after taking into account all aspects of the matter, reduced by the competent authority to the age originally fixed under the Rules i.e. 58 years in terms of recommendation of Registrar, Cooperative Societies, J&K vide its communication dated 19.12.1991. 25. That apart from the above, it has been contended that JAKFED was in serious financial crunch for the last close to two decades and there was already huge outstanding liabilities running into crores of rupees towards JAKFED employees. Relevant extract of the stand of JAKFED in the reply filed, is reproduced hereunder:- “It is humbly submitted that in the Cooperative Societies Act, General Body/Board of Directors is the only competent body to take decision/decide the age of retirement besides taking other policy decisions of the society. Relevant extract of the stand of JAKFED in the reply filed, is reproduced hereunder:- “It is humbly submitted that in the Cooperative Societies Act, General Body/Board of Directors is the only competent body to take decision/decide the age of retirement besides taking other policy decisions of the society. As already submitted hereinabove that the SRO 164/2014 has been extended to the government employees and to the employees working in the cooperative societies and besides this, otherwise any such like policy decision can only be taken by the elected Board of Directors of JAKFED and by none else. That besides above submission, otherwise also, the retirement age enhanced from the age of 58 years to 60 years in pursuance of Managing Authority decision dated 14th July, 1987 with regard to Clause 2.12(a) Section 2 of Rules and Regulations of the Jammu & Kashmir Cooperative Supply and Marketing Federation Ltd., again relegated/reduced to the original age i.e. 58 years as recommended and accordingly conveyed by the Registrar, Cooperative Societies, J&K, Jammu vide communication dated 19.12.1991 which was duly accepted and approved by the Managing Authority of the Answering Respondent Federation in its 255th meeting held on 27.12.1991 at Agenda Item No.4 as well as by the SRO 233 of 1988 issued in exercise of power vested to the Government under Section 124 of the J&K Cooperative Societies Act. It is also not out of place to mention here that besides all above submitted facts and circumstances, the answering respondent/JAKFED has been in financial crunch for the last more than two decades and there is huge outstanding liabilities running into crores of rupees towards the JAKFED employees CPF, different Fertilizer companies i.e. M/S NFL, M/S KRIBHKO, IFFCO etc.” 26. That on the basis of the same it is, clear that the competent authority i.e. the Managing Committee of JAKFED was not inclined to enhance the age of superannuation of its employees from 58 years to 60. It has categorically been denied that the age of superannuation as per the rules in JAKFED was fixed at 60 years. The decision to enhance the age from 58 to 60, was again modified to bring it to 58 years vide the Resolution of the Managing Committee of JAKFED in its meeting held on 27.12.1991. 27. It has categorically been denied that the age of superannuation as per the rules in JAKFED was fixed at 60 years. The decision to enhance the age from 58 to 60, was again modified to bring it to 58 years vide the Resolution of the Managing Committee of JAKFED in its meeting held on 27.12.1991. 27. The plea that not allowing the petitioners to continue upto the age of 60 years amounts to termination from service is without any basis in view of the categorical stand of the respondents that the petitioners are liable to be retired at the age of 58 years i.e. the age of superannuation as per the rules applicable. In view thereof, I find no merit in the writ petitions and the same are, accordingly, dismissed. 28. That in the circumstances, the petitioners shall not be entitled to count service beyond the age of 58 years for purpose of working out retiral benefits as admissible as per rules applicable. Although the petitioners have been allowed to continue in service beyond the age of 58 years i.e. the age of retirement as stipulated by the Managing Authority of the JAKFED and having taken work from the petitioners, the petitioners would be entitled to salary for the period they have worked even beyond the age of 58 years despite dismissal of the writ petitions. However, in cases where the petitioners have been allowed to continue beyond the age of 58 years upto the date of dismissal of the writ petitions. No order as to costs.” 3. In view of Para No.28 of the aforesaid judgment declining an identical relief, the writ petition has to fail. 4. The two writ petitions alongwith connected MPs are dismissed.