Banwari Lal Sharma and Others vs State of Rajasthan and Others

Nirmaljit Kaur, J.—All the above writ petitions shall stand disposed of by this common order as the issue involved is identical. For convenience, the facts are being taken from S.B. Civil Writ Petition No. 1180/2015.

The purpose of filing the writ petition is to allow the petitioner to continue in service and enhance the age of superannuation of the employees of respondent-bank from 58 to 60 years with a further prayer to set aside the resolution dated 13.10.2014 whereby the age of superannuation has been reduced from 60 to 58 years.

The petitioner is the employee of Sri Ganganagar Central Cooperative Bank Limited and was appointed on 04.03.1982. The Registrar, Cooperative Societies, Jaipur while exercising the powers under Rule 39 of the Rajasthan Cooperative Societies Rules, 2003 issued a notification dated 17.09.2008 allowing all those cooperative societies who had a share of the State Government in its capital to increase the age of superannuation of its'' employees by two different ways. In case of a cooperative society running in profit for the last three financial years with its'' strength of the employees being less than the sanctioned strength, the Managing Board of the cooperative society was at liberty to enhance the age of superannuation of its employees from 58 to 60 years. In case, the cooperative society was running in loss in any year during the last three financial years and the working strength of the employees was more than the sanctioned strength, the proposal/resolution so drawn by the Managing Board for enhancement of the age of superannuation of its employees was required to be approved by the Officer Authorized by the Registrar, Cooperative Societies, Jaipur. In pursuance to the above notification, the respondent Bank vide its'' resolution dated 08.11.2008 enhanced the age of superannuation of its employees from 58 to 60 years. Accordingly, an order dated 10.12.2008 adopting the resolution was also passed. Subsequently, the operation of the above mentioned order dated 10.12.2008 was stayed by the Joint Registrar, Cooperative Societies and the matter was sent for rescinding of the same to the Rajasthan State Cooperative Tribunal, Jaipur. The tribunal vide its Order dated 27.11.2009 set aside the decision of the respondent bank dated 10.12.2008. The same was challenged before this Court in S.B. Civil Writ Petition No. 7159/2010. The learned Single Bench vide Order dated 11.01.2011 set aside the Order dated 27.11.2009 passed by the tribunal and remitted the matter back to the tribunal for afresh decision after providing opportunity of hearing to the petitioner in the said writ petition. Ultimately, the tribunal allowed the appeal vide Order dated 11.08.2011 and upheld the decision of the respondent-bank for enhancement of the age of superannuation. The same was challenged by the respondent-bank by way of filing S.B. Civil Writ Petition No. 8333/2011 which was dismissed as infructuous vide Order dated 23.04.2014 as in the meanwhile, the respondent bank had passed another resolution dated 19.05.2011 enhancing the age of superannuation of its employees from 58 to 60 years. The operation of the said resolution also was stayed by the Joint Registrar, Cooperative Societies, against which S.B. Civil Writ Petition No. 6960/2011 titled as "Rajasthan Cooperative Bank Employees Union, Ganganagar Vs. State of Rajasthan and ors." was filed. By an interim order dated 10.08.2011 passed by the learned Single Bench, the employees of the bank were allowed to continue until they attained the age of 60 years. The said writ petition was ultimately allowed vide Order dated 21.01.2015 directing the respondent-bank to act upon the resolution enhancing the age of superannuation from 58 to 60 years. During the pendency of the above writ petition, another resolution dated 13.10.2014 has been passed for reducing the age of retirement of its employees from 60 years to 58 years. The present writ petition has, therefore, been filed challenging the resolution dated 13.10.2014. It is further contended that as per the resolution of the respondent-bank dated 08.11.2008, the increase in the age of retirement was only a one time measure and thereafter, the resolution passed by the society to enhance the age could not have been recalled.

Reply has been filed on behalf of the respondent-State. One of the preliminary objections raised in the reply is that the petitioner has approached this Court without availing the alternative remedy available to him. It was denied that the bank was in profit for the financial year 2013-14 and it was further stated that the same not being in profit for the last three consecutive years, the bank has right to reduce the age of superannuation of its employee to 58 years as per the circulars issued by the Registrar. The earlier circulars pertain to the year when the bank was in profit and therefore, it cannot restrict the powers of the bank to take a fresh decision reducing the age in accordance with law. The impugned resolution has been passed in the general house which is supreme.

From the above, the following facts emerge. A perusal of the resolution dated 17.09.2008 passed by the Registrar, Cooperative Societies, Rajasthan, Jaipur while permitting the societies to increase the age of superannuation of its employees from 58 to 60 years subject to certain conditions has not specified as to whether the age could be increased for all times to come or whether the same was open to review. Further, even if the said resolution of increasing the age of superannuation was liable to be reviewed, the period after which it could be reviewed or the period upto which it is valid is not specified. The same has led to utter confusion resulting in the number of resolutions being passed at the whims of the society which is evident from the various following resolutions/orders:-

(i) 08.11.2008 - The respondent-bank passed a resolution enhancing the age of superannuation of its employees from 58 to 60 years.

(ii) 30.01.2009 - The operation of the resolution dated 08.11.2008 was stayed by the Joint Registrar.

(iii) 19.05.2011 - The Managing Board of the respondent-bank again increased the age of superannuation of its employees from 58 to 60 years.

(iv) 30.05.2011 - The Joint Registrar, Cooperative Societies again stayed the operation of the resolution dated 19.05.2011.

(v) 13.10.2014 - The respondent bank passed another resolution reducing the age of superannuation of its employees from 60 to 58 years, which is challenged before this Court in the present writ petition on various grounds.

Meanwhile, all the above mentioned resolutions have been a subject matter of the following writ petitions at some stage or the other i.e. S.B. Civil Writ Petition Nos. 7159/2010, 8333/2011 and 6960/2011 and now the latest resolution dated 13.10.2014 is the subject matter of the present writ petition. Surprisingly, the order of the tribunal dated 11.08.2011 was challenged in S.B. Civil Writ Petition No. 8333/2011 on the ground that the profit shown of Rs. 94.08 lacs for the financial year 2007-08 was liable to be converted into the losses, if the non-performing assets to the extent of Rs. 197.25 lacs had been taken into account in the balance-sheet of the petitioner bank as per the audit report. But the said writ petition was rendered infructuous as meanwhile, the respondent - bank itself passed another resolution dated 19.05.2011 enhancing the age of superannuation of its employees from 58 to 60 years. The said writ petition was rendered infructuous on 23.04.2014. Hardly any time had passed when another resolution dated 13.10.2014 has been passed reducing the age of superannuation from 60 to 58 years, forcing the employees to approach the courts resulting in multiplicity of the litigation. Besides, the same is creating an atmosphere of unsurety and insecurity in the minds of the employees who are looking over their shoulders all the time whether they will retire at the age of 58 years or they will be allowed to work uptil 60 years. The resolution does not meet a situation where an employee may be allowed to work beyond 58 years on the basis of an order/resolution passed by the Society but may have to leave and given marching orders before 60 years on a subsequent resolution reducing the age from 60 to 58 years leading to more instability which may not in the end be in the interest of either the member or the society.

This court is conscious of the fact that the courts in the exercise of its jurisdiction should not transgress into the field of policy decision unless it infringes the fundamental rights guaranteed under the Constitution. Hence, as of now, this Court does not deem it proper to issue any mandamus for correction of the policy. However, in view of the above problems and difficulties giving rise to endless litigation arising on account of the anomaly discussed above, the Registrar, Cooperative Societies, Rajasthan, Jaipur may consider the same and addresses the anomaly and confusion arising out of the resolution dated 17.09.2008 as discussed above by clarifying the aforesaid resolution dated 17.09.2008 in whatever manner and method as deemed proper in accordance with law by at least specifying (a) whether the increase in age was a one time measure; (b) whether it was open to review subsequently; (c) if yes, then the period of its'' validity.

Coming back to the present case, from a perusal of the resolution dated 13.10.2014 as challenged before this Court, it is evident that no final decision has been taken in the meeting dated 13.10.2014 on the proposal moved for reducing the age of superannuation from 60 years to 58 years. The respondents have not disputed the contents of the copy of the resolution dated 13.10.2014 placed on record as Annexure-10. The language of the said resolution reads as under:-

Hence, by no stretch of imagination, it can be said that the age of superannuation was reduced from 60 to 58 years by resolution dated 13.10.2014. In fact, no decision had been taken on the said proposal and nor any such resolution reducing the age of superannuation seems to have been passed. The earlier resolution dated 19.05.2011 passed by the Society still holds the day and has not been recalled. Thus, the present petitioners shall be allowed to continue uptil the age of 60 years or till as such time, the final decision is taken by the appropriate authority on the proposal dated 13.10.2014 in pursuance to the resolution dated 17.09.2008 in accordance with law on the basis of the said clarification, if any, passed meanwhile by the Registrar, Cooperative Societies, whichever is earlier.

The writ petitions stand disposed of accordingly.