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Allahabad High Court · body

2019 DIGILAW 2323 (ALL)

Raj Kumar Tyagi v. State Of U. P.

2019-10-01

SUNEET KUMAR

body2019
JUDGMENT : Suneet Kumar, J. Heard Shri H.R. Mishra, learned Senior Counsel assisted by Shri K.M. Mishra, learned counsel for the petitioner, learned Standing Counsel and Sri J.P. Pandey, learned counsel appearing for the sixth respondent-Cooperative Society. 2. Petitioner is assailing the order dated 18 December 2015, passed by the third respondent-Joint Secretary, Cooperative/Appellate Authority, U.P. Shasan, Lucknow, whereby, claim of the petitioner for retiring him at the age of 60 years as against 58 years has been rejected. 3. The facts giving rise to the writ petition is that the sixth respondent, a Cooperative Society, in the name and style ‘Ordinance Factory Vetan Bhogi (Salary Earner) Cooperative Credit Society Limited, Mouradnagar, District Ghaziabad’, [Cooperative Society] registered under the provisions of U.P. Cooperative Societies Act, 1965,[Act, 1965]. The Cooperative Society is governed by the non statutory bye-laws. It is self financed; service rules/regulation governing the service conditions of its employee has not been framed by the Cooperative Society. Petitioner came to be appointed Junior Clerk in 1971, and subsequently, Secretary of the Cooperative Society. It appears that the Cooperative Society, like other employees, was retiring the petitioner on attaining the age of superannuation at 58 years. Aggrieved, petitioner instituted a petition being Writ Petition No. 40744 of 2015, wherein, relief primarily sought was that the petitioner should be permitted to continue in service until completion of 60 years and pay regular salary. During pendency of the writ petition, on legal advise, petitioner filed a representation/petition under Section 128 of Act, 1965, before the fourth respondent-Joint Commissioner, Cooperative Society, Meerut Region, Meerut, challenging the communication of the Cooperative Society retiring the petitioner at 58 years. The fourth respondent upon hearing the parties vide order dated 1 October 2015, set aside the resolution of the Committee of Management retiring the petitioner at 58 years. Aggrieved, Cooperative Society preferred an appeal before the third respondent-Joint Secretary, Cooperative Tribunal/Appellate Authority, Lucknow, which came to be allowed by the impugned order dated 8 December 2015. Reliance was placed by the petitioner on the circular dated 30 August 2012, issued by the Registrar, Cooperative Societies addressed to all the Deputy Registrar and all District Assistant Registrar, Cooperative Societies, directing that no employee of the Cooperative Society should either be reappointed/re- engaged on attaining the age of superannuation i.e. 60 years. The circular is endorsed to all the Societies in the State. 4. The circular is endorsed to all the Societies in the State. 4. It is urged by learned counsel for the petitioner that since the Registrar, Cooperative Societies, noted in the circular that the age of retirement of the employees/Secretary of all the Cooperative Society would be 60 years, it, therefore, would also bind the employees of the respondent-Cooperative Society. In other words, it is sought to be urged that pursuant to the circular, petitioner is entitled to continue until 60 years. The submission, herein, was also pressed before the Appellate Authority, however, Appellate Authority rejected the contention. It is noted in the impugned order that the circular relied upon does not fix or determine the age of superannuation of the employees universally applicable to all the Cooperative Societies, rather, it prohibits the Cooperative Society for continuing or reappointing an employee after the age of superannuation. The Cooperative Societies governed by the Regulations framed under the Act, 1965, have amended their Regulations enhancing the age of 60 years, but that would not mean that the age of superannuation would automatically be applicable to all the Cooperative Societies. The respondent-Cooperative Society categorically stated before the Appellate Authority that they have been retiring their employees at the age of 58 years. The Managing Committee of the Cooperative Society had considered the proposal whether the age of retirement should be enhanced to 60 years. The Managing Committee vide resolution dated 14 March 2009 and 22 July 2015, resolved not to enhance the age of retirement of its employees at 60 years. In the circumstances, the Appellate Authority was of the view that the age of retirement at 60 years, accepted and adopted by the Cooperative Societies enhancing the age of retirement, would not apply to the respondent-Cooperative Society in the backdrop of the resolution declining to enhance the age of retirement. 5. Learned counsel for the petitioner, further, submits that the employees of the Ordinance Factory are members of the respondent- Cooperative Society, they retire at the age of 60 years. It is, therefore, urged that the employees of the Cooperative Society should also retire at 60 years. Submission on examination lacks merit. The condition of service of the employees of Ordinance Factory would not apply to the employees of the respondent-Cooperative Society, a private body. It is, therefore, urged that the employees of the Cooperative Society should also retire at 60 years. Submission on examination lacks merit. The condition of service of the employees of Ordinance Factory would not apply to the employees of the respondent-Cooperative Society, a private body. No provision/circular of the Ordinance Factory has been placed on record to support the submission by the learned counsel for the petitioner. It is admitted that the respondent-Cooperative Society is a private body, self financed and there is no co-relation of the employees of the Cooperative Society with the employees of the Ordinance Factory. It is not being disputed by the learned counsel for the petitioner that the Cooperative Society has not framed Regulations under Section 122 of the Act, 1965, and is governed by the non statutory bye-laws framed by the Cooperative Society. 6. Reliance has been placed by learned counsel for the petitioner in particular to Clause 19 and 20 on the bye-laws of the Cooperative Society dated 5 October 1970. Clauses 19 & 20 of the bye-laws reads thus: 7. It is urged that the bye-laws clearly provide that the Rules and Regulations framed from time to time under the Act, 1965 would govern the appointment, suspension, removal, appointment etc. of the employees of the Cooperative Society. The learned counsel submits that the bye- laws, however, do not provide for the age of superannuation, therefore, it is sought to be urged that the age of superannuation applicable to all other Cooperative Societies under the Act, 1965, should be read into the bye- laws to make it applicable on the employees of the respondent- Cooperative Society. Submission lacks merit for the reason that the Regulation framed under the Act, 1965, by any other Society governing conditions of service would not automatically apply upon respondent-the Cooperative Society. Admittedly, condition of service of the employees of the respondent-Cooperative Society is not governed by the statutory Regulations framed under Section 122 of the Act, 1965. It is not the case of the petitioner that the condition of service including the age of superannuation, as amended from time to time by other Societies, has been resolved and accepted by the respondent-Cooperative Society. Admittedly, the resolutions clearly reflect that the Cooperative Society had considered the proposal for enhancement of the age of superannuation of its employees but was not accepted by the Managing Committee. Admittedly, the resolutions clearly reflect that the Cooperative Society had considered the proposal for enhancement of the age of superannuation of its employees but was not accepted by the Managing Committee. The resolutions are not under challenge before this Court nor was its subjected to challenge before the Appellate Court. 8. Learned counsel for the respondent has placed reliance on a Division Bench decision rendered in Surendra Pratap Singh vs. Registrar, Co-operative Societies and others, 1986 All.LJ 70 to submit that the Registrar, Cooperative Societies would have no power and authority to propose/suggest/or amend conditions of service of the employees of a Cooperative Society not governed by statutory provision. Admittedly, the conditions of service of the petitioner are governed by non statutory bye- laws, and the resolution of the Cooperative Society mandate that the employees of the Cooperative Society would to retire on attaining the age of 58 years, the enhanced age at 60 years proposed and adopted by other Cooperative Societies by amending the Regulations was not accepted by the respondent-Cooperative Society. 9. Learned counsel for the petitioner failed to point out any illegality, infirmity or perversity in the impugned order. 10. The writ petition being devoid of merit, is accordingly, dismissed. 11. No costs.