Pramod Chandra Pandey vs State of U.P.and Others

Sudhir Agarwal, J.—Heard Sri Manish Singh, learned counsel for the petitioner and learned Standing Counsel for the respondents.

With the consent of learned counsel for the parties, since pleadings are complete, the Court has proceeded to decide this matter finally under the Rules of this Court at this stage.

The facts, in brief, giving rise to the present dispute are that petitioner was working as Senior AssistantcumAccountant in Ganna Kisan Sansthan Training Centre, Gorakhpur and completed 58 years of age in August, 2011. The Assistant Director, Ganna Kisan Sansthan, Gorakhpur, resondent no. 3, vide order dated 26.03.2011 communicated the petitioner that in view of Para 7.7 of Ganna Vikas Sansthan Sewa Niyamawali he would retire on 31.08.2011, i.e., on completion of age of superannuation, i.e., 58 years.

The claim of petitioner is that he was entitled to continue till he attains the age of 60 years in view of the fact that Governing Council has already resolved to extend the age of retirement upto 60 years and power to amend the rule is vested with Governing Council of U.P. Ganna Kisan Sansthan (hereinafter referred to as the "Sansthan"). Hence the petitioner could not have been retired on attaining the age of 58 years only on the ground that this resolution of Governing Council was not approved by State Government vide order dated 31.12.2008. It is in these circumstances the Government Order dated 31.12.2008 declining to grant approval extending age of superannuation from 58 to 60 years to employees of Sansthan has also been assailed.

A preliminary objection was raised that a writ petition would not lie in the matter of dispute relating to Sansthan which is a society registered under the Societies Registration Act. This Court finds answer to this query in a Full Bench judgment in Radhey Shyam Rai Vs. State of U.P. and others, 2005(3) UPLBEC 2549 wherein U.P. Ganna Kisan Sansthan has been held an instrumentality of State and, therefore, a "State" within Article 12 of the Constitution and hence a writ petition under Article 226 of the Constitution would be maintainable. In para 40 of the judgment the Full Bench has concluded as under:

"40. In the premise we hold, as stated above, that Ganna Kisan Sansthan is State within the meaning of Article 12 of the Constitution and a Writ in the nature of certiorari is maintainable against the Sansthan under Article 226 of the Constitution."

In view thereof, it cannot be said that writ petition in question is not maintainable. I hold accordingly.

Now I come to the core question whether the petitioner would have retired on attaining the age of 58 years or 60 years. There is no dispute between the parties that terms and conditions of service of petitioner are governed by U.P. Ganna Kisan Sansthan Service Rules, 1979 (hereinafter referred to as the "Rules, 1979"), a copy whereof has been filed as Annexure4 to the writ petition. These Rules have been framed in 1979 and were implemented w.e.f. 01.04.1979. Para 7.7 provides the age of superannuation of employees of Sansthan. For ClassIV employees it is 60 years and for others it is 58 years. It also confers power of premature retirement upon the competent authority provided the employee concerned has completed 50 years of age. This Court is not concerned with the question of premature retirement.

Para 16 of Rules, 1979 as amended in 1992 confers power upon the Governing Council of Sansthan to make amendment in the Rules or to grant relaxation, if any.

The petitioner contended that since Rules, 1979 could have been amended by Governing Council itself and it had taken a decision to increase age of retirement to 60 years from 58 years vide resolution dated 06.05.2006, hence there was no occasion to seek approval from Government. In view of the decision taken by Governing Council on 06.05.2006, Para 7.7 of Rules, 1979 ought to be treated as duly amended and petitioner, therefore, could not have been retired on attaining the age of 58 years. He submitted when a particular procedure has been prescribed in the Rules, the same has to be observed strictly and by superimposing the requirement/condition of so called approval of higher authority, i.e., the State Government, the procedure prescribed in Rules cannot be given a go bye. It is further submitted that in other departments including the Cooperative Sugar Societies the age of retirement was increased from 58 to 60 years, therefore, nonextension of same benefit to petitioner is even otherwise illegal and arbitrary.

A counter affidavit has been filed on behalf of respondents sworn by Dr. Naval Kishore Kamal, Deputy Director, Lal Bahadur Sastri Ganna Kisan Sansthan, Lucknow. It is not disputed that service conditions of petitioner and other employees of Sansthan are governed by Rules, 1979 as amended in 1992. A complete set of Rules has been filed as Annexure1 to the counter affidavit. It is stated that there was no resolution making any amendment in Rules but a decision was taken in principle to extend age of retirement from 58 to 60 years but subject to approval of State Government. Therefore, the resolution as such does not have the effect of amending Para 7.7 of Rules, 1979. It is also submitted that under Memorandum of Association of Sansthan the State Government has the power to issue executive orders directing Sansthan to act in a particular manner and Sansthan is under an obligation to give effect to such directives of the State Government. A copy of Memorandum of Association of Sansthan has been filed as Annexure4 to the counter affidavit and Clause 41(a) has been quoted in para 13 of the counter affidavit. It is also submitted that the issue has already been settled by this Court in Writ Petition No. 9690 of 2010, Bhopal Singh Vs. State of U.P. and others, decided on 23.02.2010 in favour of Sansthan and the writ petition seeking similar relief has already been dismissed.

I have heard learned counsel for the parties and perused the record.

Para 7.7 of Rules, 1979, which provides age of retirement, reads as under:

"Age of superannuation of ClassIV employees of the Institute will be 60 years and that of other employees would be 58 years. But the Appointing Authority shall have the power to superannuate, in the interest of administration, such employee who has completed 50 years of age and whose work and conduct is below the average, with no hope of improvement, after giving him three months notice or giving salary of three months." (English translation by the Court)

The power of amendement of Rules has been conferred under Rule 16 and it reads as under:

"Power to make necessary changes and relaxation in rules will be vested in the Governing Council of the Institution."

(English translation by the Court)

Learned Standing Counsel has also not disputed the power of Governing Council of Sansthan to make amendment in the Rules. He, however, has firstly submitted that there was no decision taken by Governing Council to make amendment in the Rules and, therefore, the assumption of amendment in Rules founded on resolution dated 06.05.2006 is baseless and non est. The basic premise of entire writ petition is fallacious and unfounded. He further submitted that it is always open to Governing Council to seek approval of State Government for a decision taken by it before making amendment in the Rules. Such power of Governing Council is not contrary to any provision of the Rules. The Governing Council at no point of time decided to amend Para 7.7 in a particular manner and, therefore, its resolution dated 06.05.2006 by itself would not confer any right upon petitioner to claim extended age of retirement, i.e., 60 years by treating as if Para 7.7 of Rules, 1979 stood automatically amended. I find substance in these arguments.

This Court finds it appropriate first to consider the resolution passed by Governing Council. Can it be construed as an ipso facto amendment of Para 7.7. The agenda Item No. 8 and resolution passed by Governing Council is contained in minutes, placed on record as Annexure6 to the writ petition, and the relevant part on page 51 reads as under:

"Item No. 8

Regarding extension of retirement age of employees of Ganna Sansthan."

(English translation by the Court)

Unanimously resolved on principle to extend age of retirement of employees of Institution from 58 to 60 years and was recommended for approval of the Government.

(English translation by the Court)

From a bare perusal of minutes it is evident that Governing Council as such did not consider the amendment of Rules. A general subject of extension of age came to be considered by it and it passed a resolution to accept on principle the extension of age of retirement from 58 to 60 years but for that it also resolved for seeking approval from State Government. This is a decision taken by a body competent to make amendement in the Rules. The learned counsel for the petitioner could not place anything to show that such a decision could not have been taken by Governing Council before making an amendment of Para 7.7 in a particular manner. The aforesaid decision of Governing Council was also not inconsistent with the provisions of Memorandum of Association and this Court find nothing obnoxious or invalid therein.

This question can be considered from another angle. Para 7.7 which this Court has already quoted above shows that in the first part it provides age of retirement of ClassIV employees but in the continuing sentence it provides age of retirement of other employees as 58 years. In order to make amendment in Para 7.7 it has to be redrafted in a proper manner and that redrafted rule has to be approved by Governing Council. The resolution dated 06.05.2006 does not show that any redrafted rule which would have substituted Para 7.7 was approved or accepted by Governing Council. Unless it is done, it cannot be said that a resolution passed by Governing Council accepting a subject matter on a particular aspect in principle would have the result of amendment in Rules. Whenever a change is made in a Rule, the manner in which amended Rule shall be read has to be drafted and approved by competent authority. Nothing of that sort has been done in the case in hand. The Governing Council''s power to seek approval of State Government has not been shown to be in contravention of any provision particularly when it was not seeking approval on the amendement of Rule but it was seeking approval on the policy decision taken by it on a particular subject without having the effect of a suo motu or ipso facto change in the format of Rule. Such procedure followed by Governing Council cannot be said to be illegal or without jurisdiction or in violation of any statutory provision. None in fact has been shown to this Court. In the circumstances, it cannot be said that Para 7.7 stood amended as soon as resolution dated 06.05.2006 was passed by Governing Council and had the effect of extending age of superannuation of employees other than ClassIV employees from 58 to 60 years.

Moreover, I find that this question has also been considered by this Court in Bhopal Singh (supra) and there also the ultimate conclusion has been drawn by Court that age of retirement provided in Para 7.7 of Rules, 1979 has not been amended by resolution dated 06.05.2006. To the reasons assigned in the judgement, I respectfully concur and agree.

The various authorities cited at the bar, on the proposition that procedure once prescribed cannot be diverted or that when something is required to be done in a particular manner, must be done in that way, have no application to the facts of this case. In my view the Apex Court''s decision in The Joint Action Committee of Airlines Pilots Associations of India and others Vs. The Director General of Civil Aviation and others, 2011 All. C.J. 1752 also has no application to the facts of this case.

In the result, the writ petition is devoid of merit.

Dismissed.

There shall be no order as to costs.