Rajasthan High Court - Jodhpur
Duli Chand vs State Of Raj. & Ors on 18 August, 2010
Bench: Jagdish Bhalla, Dinesh Maheshwari
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR.
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:: ORDER ::
S/1 D.B. CIVIL SPECIAL APPEAL (W) NO. 547/2010.
Duli Chand Vs. State of Rajasthan & Ors.
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S/2 D.B. CIVIL SPECIAL APPEAL (W) NO. 548/2010.
Rajkumar Midha Vs. State of Rajasthan & Ors.
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S/3 D.B. CIVIL SPECIAL APPEAL (W) NO. 549/2010.
Ram Kumar Sharma Vs. State of Rajasthan & Ors.
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S/4 D.B. CIVIL SPECIAL APPEAL (W) NO. 550/2010.
Tilak Raj Vs. State of Rajasthan & Ors.
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S/5 D.B. CIVIL SPECIAL APPEAL (W) NO. 551/2010.
Ram Niwas Sharma Vs. State of Rajasthan & Ors.
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CS/6 D.B. CIVIL SPECIAL APPEAL (W) NO. 04781/2010.
Bhoop Ram Vs. State & Ors.
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Date of Order :::: 18th August 2010
PRESENT
HON'BLE THE CHIEF JUSTICE MR. JAGDISH BHALLA
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Sandeep Shah, for the appellants.
Mr. B.S. Sandhu,for the respondent No.4 (Caveator).
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BY THE COURT:
These six intra-court appeals, preferred against similar nature and common orders dated 10.08.2010 passed by the learned Single Judge on the prayer for interim relief in respective writ petitions, have been heard and considered together; and are taken up for disposal by this common order.
As the issue herein relates to the grant of interim relief and else, the writ petitions are to be considered on merits by 2 the learned Single Judge, we do not propose to make any comment or observation that might have bearing on the merits of the controversy; and hence, only a brief reference to the background facts would suffice.
The writ petitioners-appellants had been working on different posts with the respondent - Ganganagar Kendriya Sahakari Bank Limited (hereinafter referred to as 'the respondent-Bank"), a registered cooperative society. It is not in dispute that at the stage the writ petitioners entered into the service of the respondent-Bank, the retirement age of the employees was 58 years. The petitioners filed the writ petitions with the submissions that by the Circular dated 17.09.2008, the Registrar, Cooperative Societies, Jaipur directed the concerned cooperative societies to take decision for increasing the age of superannuation of the employees from 58 to 60 years. According to the petitioners, in pursuance of this Circular, the Managing Committee of the respondent-Bank passed the resolution dated 08.11.2008 whereby the age of superannuation of the employees was increased from 58 to 60 years; and in continuation of this resolution, an order was issued by the Managing Director of the respondent-Bank on 10.12.2008. The case of the writ petitioners is that the Joint Registrar, on his own and without considering the proposal pending before the Registrar, in the purported exercise of powers under Section 125 of the Rajasthan Co-operative Societies Act, 2001 (hereinafter referred to as "the Act of 2001"), proceeded to stay the effect and operation of the said resolution dated 08.11.2008 and the decision dated 3 10.12.2008 by his order dated 04.06.2009. In pursuance of the said order dated 04.06.2009, the respondent-Bank also adopted the resolution on 15.06.2009 treating the order dated 10.12.2008 ineffective and to retire the persons who had completed 58 years of age.
The petitioners have sought the reliefs in the writ petitions that the impugned order passed by the Joint Registrar on 04.06.2009 and the consequential order dated 15.06.2009 passed by the Managing Committee of the respondent-Bank may be quashed and set aside; and the respondents may be restrained from retiring them until attaining the age of 60 years. It appears that in these writ petitions, earlier the interim orders came to be passed on 19.06.2009 staying the operation of the questioned orders and thereby requiring the respondent-Bank to continue the writ petitioners in service.
In one of these cases, relating to SAW No. 547/2010 (CWP No. 10654/2009), an application for vacating the interim order was also rejected by the learned Single Judge. Then, the matter was taken by the respondent-Bank in intra-court appeal, being SAW No. 214/2010. This intra-court appeal was dismissed in limine by a co-ordinate Division Bench but with the following observations:-
"(2) Admittedly, the impugned order dt. 13.1.2010 is an order passed in a pending writ petition whereby the application for vacating interim stay was rejected.
(3) In our view, in such circumstances the proper remedy for the appellant would be to approach the learned Single Judge in a pending writ petition and file appropriate application either for seeking modification of the impugned order or for its setting aside as the case may be and depending upon the facts alleged in their application, the appropriate order can always be passed. Needless to 4 observe, if any such application is made by the respondent no.4 the same shall be decided in accordance with law by the writ court.
(4) It is with these observations and liberty we do not wish to interfere with the impugned order at this stage and dismiss the appeal in limine."
The applications as moved by the respondent-Bank in other five matters for vacating the interim order under Article 226(3) of the Constitution of India were considered together by the learned Single Judge on 10.08.2010 and after considering various submissions of the parties, the learned Single Judge found that the interim orders do not deserve to be extended further. Apart from referring to the facts of the case, the learned Single Judge also referred to an order dated 02.08.2010 passed by this Court in SAW No. 477/2010 particularly on the parameters for grant or refusal of interim relief in such matters wherein it has been pointed out that such nature interim order cannot be passed whereby the employer is forced to continue with the employee beyond the existing and applicable age of superannuation pending adjudication on the controversy of about the age of superannuation; and that the aspects relating to the balance of convenience and irreparable injury cannot be considered existing in favour of the writ petitioner in such a dispute. While proceeding on these principles and finding no reason to continue with the stay order, the learned Single Judge allowed the applications moved under Article 226 (3) of the Constitution of India and vacated the interim orders. The learned Judge, accordingly, rejected the stay applications and then, posted the writ petitions for hearing in due course.
5
After having rejected the stay applications in five of these similar writ petitions by a common order, the learned Single Judge found no justification to continue with the interim order in Duli Chand's case (CWP No. 10654/2009) either; and proceeded to reject the stay application therein too.
Seeking to assail the orders so passed by the learned Single Judge, the learned counsel for the appellants- petitioners contended that the writ petitioners had already worked for above one year pursuant to the interim orders earlier made in the writ petitions and there was no justification for the learned Single Judge in vacating the interim orders at this stage. The learned counsel further attempted to make submissions on the merits of the case and particularly contended that the suggestions about the respondent-Bank being not in profit in one financial year were incorrect on facts and were rather contradicted by the stand as taken by the respondent-Bank in the reply; that initiation of proceedings under Section 125 of the Act of 2001 by the Joint Registrar was entirely unauthorized and unjustified; and that even in the case of the society being in loss for any one year, the decision already taken for increasing the age of superannuation could not be rescinded. The learned counsel further submitted that even a cited decision [reported in 2010 (1) RLW 69] has not been considered by the learned Single Judge. In relation to the petitioner-appellant Duli Chand, the learned counsel further argued that in this case, the stay vacation application had already been rejected and such order had been affirmed by 6 the Division Bench; and, therefore, the learned Single Judge was not justified in vacating the interim order in this case.
As observed above, the issue being considered herein is only on the question of grant of interim relief and hence, we do not propose to deal with the contentions relating to the merits of the case. However, we are clearly of opinion that even if the petitioners had been able to make out an arguable case, that was not, by itself, decisive of the question of grant of interim relief because the other fundamental and essential factors of balance of convenience and irreparable injury, looking to the subject matter of the writ petitions, could not have been considered existing in their favour. While dealing with a similar nature controversy, in the order dated 02.08.2010 as passed in SAW No 477/2010, we have pointed out,-
"Taking a comprehensive view of the matter with reference to the frame of writ petition and the contentions of the parties, it is but apparent that as at present, the petitioners suggest deduction of the result that age of superannuation has been enhanced in relation to the employees like them in the appellant- University; and prayers have been made for striking out the provisions to the contrary; and directions have been sought against the respondents to enhance the age of superannuation from 60 to 65 years. Whether such directions are required to be issued or not, is definitely a matter for consideration in the pending writ petitions but then, pending such adjudication, the present operating position of the statute governing the appellant-University and thereby its employees could not have been ignored. We are clearly of opinion that such nature interim order could not have been passed whereby the appellant-University was forced to continue with the writ petitioners beyond the present age of superannuation applicable in the appellant- University.
In the matters of present nature, we are clearly of the view that even if the petitioners are able to make out an arguable case that is not by itself decisive of the question of grant for interim relief because the very fundamental and essential factors of balance of convenience and irreparable injury cannot be considered existing in favour of the writ petitioners.7
On the other hand, in the event of success in the writ petition, the Court is always competent to pass appropriate orders and for that matter, even to mould the relief if so required."
In the present cases too, looking to the nature of dispute, in our opinion, there was no justification for granting an interim relief so as to force the employer to continue with the employees contrary to the applicable age of superannuation as per the existing decision/resolution/order. The submission that the petitioners have continued for some time under the ad-interim orders, in our view, does not make out any equity in their favour. The learned Single Judge has been right and justified in vacating the interim orders in these cases.
So far the petitioner-appellant Duli Chand is concerned, a bare look at the earlier order dated 23.04.2010 passed in SAW No. 214/2010 (as reproduced above) makes it clear that the Division Bench only left it open for the respondent-Bank to approach the learned Single Judge for appropriate orders. Though it is submitted that no separate application was moved by the respondent-Bank in the said case but having regard to the given set of circumstances and the order as passed in five similar nature writ petitions whereby the interim orders were vacated, the learned Single Judge could not have proceeded on mere technicalities and could not have continued with the interim order in this single case for want of an application by the respondent. The principles as applicable to the similar nature pending matters were required to be, and have rightly been, applied in parity.
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In view of the aforesaid, we are clearly of opinion that these appeals do not merit admission and deserve to be dismissed. However, even while dismissing these appeals, we are of the view that in the given circumstances, the writ petitions deserve to be taken up for hearing at an early date. In fact, even in SAW No. 447/2010, while vacating the similar nature interim orders on 02.08.2010, we made it clear that unnecessary delay and protraction of proceedings in such writ petitions is required to be avoided and directed early taking up of the writ petitions for final hearing and their consideration not to be deferred on any request for adjournment on behalf of the employer. Having regard to the circumstances, we deem it appropriate to request the learned Single Judge to take up these matters also for final hearing expeditiously with the observation that the consideration of the writ petitions be not deferred on any request for adjournment on behalf of the respondent-Bank.
Accordingly, these appeals are dismissed. The impugned order is affirmed, however, with the observation that the writ petitions be placed for final hearing before the learned Single Judge in the week commencing from 06.09.2010 and with further observation that the consideration of the writ petitions shall not be deferred on any request for adjournment on behalf of the respondent-Bank. No costs.
(DINESH MAHESHWARI), J. (JAGDISH BHALLA), CJ. Mohan/