Mahesh vs The State of Karnataka and Others

B.S. Patil, J.—1. Petitioner is the employee of respondent No. 3-Sirsi Taluka Agriculture Produce Co-operative Marketing Society Limited. Respondent No. 3-Society is a Society registered under the Karnataka Cooperatives Societies Act, 1959 (for short ''the Act''). The age of retirement of the members of Co-operative Societies was earlier regulated by Rule 18 of the Karnataka Co-operative Societies Rules, 1960 (for short ''the Rules''). The said Rule provided for the age of retirement of the employees of Co-operative Societies in the State of Karnataka as 58 years. However, with effect from 17th September 2008, the said Rule was amended enhancing the age of retirement to 60 years. By another amendment, Rule 18 has been substituted as per Notification dated 10th July 2013 with effect from 10th July 2013. The amended Rule 18 reads as under:

"18. Conditions of service of the employees of the co-operative Societies.-Every co-operative society shall lay down in its bye-law, conditions of service of its employees. If it is not already laid down, it can be incorporated within three months from the date of commencement of these Rules."

In the result, with effect from the date of the aforesaid amendment, the Co-operative Societies have been conferred with discretion to lay down the conditions of service of their employees which includes the age of superannuation. After this amendment, respondent No. 3-Society has convened a General Body Meeting on 21st September 2013 and resolved to amend the age of retirement of its employees by reducing it to 58 years from 60 years.

The proposed amendment was sent for approval of Deputy Registrar of Co-operative Societies, Karwar. The Deputy Registrar rejected the proposed amendment. Aggrieved by the same, the Society filed an appeal before the Joint Registrar. The Joint Registrar has, vide his order dated 09th March 2015, approved the amendment and ordered for its registration. Thereafter, respondent No. 3 amended its bye-law in terms of the order passed by the Joint Registrar of Co-operative Societies, with effect from 29th June 2015.

Petitioner along with other employees made a representation to the Society on 18th August 2015 contending inter alia that they were in service of the Society prior to the amendment and hence, were entitled to retire at the age of 60 years. The Society issued an endorsement rejecting the request, holding that the amendment, as approved by the Joint Registrar, would be effective from the date of its amendment and would regulate all the employees of the Society in service.

Leaned Senior Counsel, Sri. Jayakumar S. Patil, who appeared for the petitioner, has contended that Rule 18, as it stood un-amended prescribed the age of superannuation at 60 years; even if there is a subsequent amendment brought to Rule 18, it will not have retrospective effect. He urges that if by virtue of the amendment, the Society is conferred with power to make bye-laws regulating conditions of service of its employees, then the Society can pass such bye-laws to regulate the conditions of service only prospectively and not so as to operate retrospectively.

Sri. Mahantesh C. Kotturshettar, learned counsel appearing along with the learned Senior Counsel-Sri. Jayakumar S. Patil, has placed reliance on the judgment of this Court in 2005 (4) Kant.L.J. 82, in the case of SHIVAGOUDA versus JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES AND HEADQUARTERS ASSISTANT FOR THE COMMISSIONER FOR CANE DEVELOPMENT AND DIRECTOR OF SUGAR, and also on the judgment of the Apex Court in the case of BABURAM versus C.C. JACOB, , AIR 1999 SC 1845, to support the contention that there cannot be retrospective operation given to such a Rule.

Learned counsel appearing for respondent No. 3, Sri. Anant Hegde, at the outset, submits that petitioner has participated in the General Body Meeting in his capacity as a member of the Society and was, therefore, a party to the amendment of the bye-law whereunder age of superannuation has been reduced to 58 years from 60 years and therefore, he was estopped from contending to the contrary.

It is his next contention that petitioner being a member of the Society has an alternative remedy of raising the dispute under Section 70 of the Act. On merits, he has urged that the bye-law has come into operation with effect from the date of its registration, therefore, it cannot be said that it has retrospective operation, because it will operate in respect of such of the employees who retired on and after the date on which the amended bye-law came into force. In support of his contentions, he has placed strong reliance on the judgments of the Apex Court in the case of STATE OF ANDHRA PRADESH, etc., etc., Versus S.K. MOHINUDDIN, etc., etc., , AIR 1994 SC 1474, and in the case of ROSHAN LAL TANDON Versus UNION OF INDIA, , AIR 1967 SC 1889(1).

Upon hearing the learned counsel for both parties, the point that arises for consideration is:

"Whether petitioner is governed by the bye-law of respondent No. 3-Society as amended which prescribes age of retirement as 58 years and which has come into force after the same was duly approved by the Joint Registrar of the Co-operative Societies?"

It is not in dispute that petitioner is an employee of respondent No. 3-Co-operative Society. It is also not in dispute that initially, age of retirement of the employees of the Co-operative Societies in the State of Karnataka was regulated by Rule 18 of the Rules. As per this Rule, earlier, the age of retirement was 58 years. During this period, when the age of superannuation was 58 years. Petitioner entered into service of respondent No. 3-Society. Rule 18 was subsequently amended enhancing the age of superannuation and fixing it at 60 years, by virtue of the Notification dated 17th September 2008. This amendment was consistent with the amendment brought in respect of the age of superannuation of the Government Servants, which had also been enhanced to 60 years.

However, by the amendment introduced with effect from 10th July 2013, Rule 18 was substituted, thereby leaving it to the discretion of the Co-operative Societies concerned to regulate the conditions of service of their respective employees. As a result, respondent No. 3-Society has passed a resolution in its General Body Meeting, proposing to amend the bye-law by fixing the age of superannuation to 58 years from 60 years. This amendment has been duly approved by the authorities under the Act and has come into force with effect from the date of registration of the bye-law.

Petitioner is going to retire on 29th February 2016. He is bound by the bye-law framed and his conditions of service are governed by the same. Rule 18 no longer prescribes the age of superannuation. In the absence of any statutory Rule prescribing any other age of retirement, the employees of respondent No. 3-Society are bound by the age of superannuation prescribed in the bye-law of the Society, which has been duly registered. There is no vested right in the petitioner to claim that he shall retire after attaining the age of 60 years only, because there was, at one stage, such a condition of service incorporated in Rule 18.

Indeed, as rightly contended by the learned counsel for respondent No. 3-Society, at the time when the petitioner joined service, the age of retirement was 58 years even as per Rule 18. At present, age of retirement has been fixed at 58 years. Only during the interregnum, due to amendment to Rule 18, the age of retirement stood enhanced to 60 years.

Indeed, the Apex Court in a similar circumstance, in the case of BISHUN NARAIN MISRA Versus THE STATE OF U.P. AND OTHERS, , AIR 1965 SC 1567(1), has held that amendment to Rule by reducing the age of retirement, in such circumstance, would be applicable with effect from the date the Rule comes into operation and the same cannot be termed as retrospective operation. In paragraph (6) of the said judgment, dealing with similar contention urged by the employee, the Apex court has found that there was no retrospectivity in the Rule because all that the Rule provided was that from the date it comes into force, the age of retirement would be 58 years and therefore, it would apply from that date to all the Government servants, even though they might have been recruited prior to the Rule came into force.

Similarly, in the present case, amendment to the bye-law effected by respondent No. 3-Society would come into force from the date the bye-law was approved and registered, irrespective of when the employee concerned entered into service of the Society.

The judgments on which the learned counsel for the petitioner has placed reliance do not apply to the facts of the present case, inasmuch as in SHIVAGOUDA''s case, question that fell for consideration was with regard to the increase in share capital so as to enable certain Class of shareholders to be treated as ''A'' Class members. The age of retirement of an employee was not involved in the said case. Therefore, the said judgment cannot be made applicable to the facts of the present case.

Likewise, in the case of BABURAM (supra), the matter pertained to promotion to the vacancy reserved for schedule castes. The contention was that percentage of reservation had to be worked out in relation to the number of posts, forming the cadre strength and not with reference to vacancy. In that context, the Apex Court referred to prospectivity given to the law on the point in R.K. SABHARWAL Versus STATE OF PUNJAB, , AIR 1995 SC 1371. This principle of law has no application to the facts involved in the present case.

Therefore, the grievance made in the petition, is devoid of merits. Hence, the Writ Petition is dismissed.