Rajasthan High Court - Jodhpur
Pukhraj Choudhary vs State Of Raj. & Ors on 25 February, 2010
Author: Prakash Tatia
Bench: Prakash Tatia
1
IN THE HIGH COURT OF JUDICATAURE FOR RAJASTHAN
AT JODHPUR.
ORDER.
(1) S.B. Civil Writ Petition No.8626/2009
Dairy Karamchari Union vs. The State & ors.
& ors.
(2) S.B. Civil Writ Petition No.9102/2009
Lumba Ram Vishnoi vs. The State & ors.
& ors.
(3) S.B. Civil Writ Petition No.6581/2009
Kanti Lal Ojha vs. The State & ors.
& ors.
(4) S.B. Civil Writ Petition No.7168/2009
Kishan Lal Chanwariya vs. The State & ors.
(5) S.B. Civil Writ Petition No.8823/2009
Om Prakash vs. The State & ors.
(6) S.B. Civil Writ Petition No.8824/2009
Chog Singh vs. The State & ors.
(7) S.B. Civil Writ Petition No.8946/2009
Bharat Singh Rathore vs. The State & ors.
& ors
(8) S.B. Civil Writ Petition No.9000/2009
Gopal Mohan Gupta vs. The State & ors.
(9) S.B. Civil Writ Petition No.9001/2009
Mahesh Chandra Pandey vs. The State & ors.
2
(10) S.B. Civil Writ Petition No.9002/2009
Mulri Manohar Vyas vs. The State & ors.
(11) S.B. Civil Writ Petition No.9003/2009
Ghanshyam Singh vs. The State & ors.
(12) S.B. Civil Writ Petition No.9004/2009
Mahesh Chand vs. The State & ors.
(13) S.B. Civil Writ Petition No.9005/2009
Vinit Kumar Gupta vs. The State & ors.
(14) S.B. Civil Writ Petition No.9007/2009
Banwari Lal Gupta vs. The State & ors.
(15) S.B. Civil Writ Petition No.9008/2009
Abdul Sadique vs. The State & ors.
(16) S.B. Civil Writ Petition No.9010/2009
Vijay Prasad Sharma vs. The State & ors.
(17) S.B. Civil Writ Petition No.9046/2009
Poonam Chand Purohit vs. The State & ors.
(18) S.B. Civil Writ Petition No.9104/2009
Nagendra Kumar Devpura vs. The State & ors.
& anr.
(19) S.B. Civil Writ Petition No.9413/2009
Pukhraj Choudhary vs. The State & ors.
3
& ors.
(20) S.B. Civil Writ Petition No.9471/2009
Mahendra Singh vs. The State & ors.
Chundawat & ors.
Date of Order: February 25th, 2010.
PRESENT
HON'BLE MR. PRAKASH TATIA, J.
Servashri M.R. Singhvi, SD Vyas, Girish Joshi, JS Purohit,
PK Lohra, for the petitioners.
Servashri P.P. Choudhary, Rajesh Joshi, Anand Purohit,AAG,
K.K. Bhati, B.P. Mathur, V.R. Choudhary, B.S. Bhalasria
and, Ashvini Gehlot for the respondents.
REPORTABLE
BY THE COURT :
In all the writ petitions, substantially the relief of the petitioners is for claim of their age of superannuation at the age of 60 years and not at the age of 58 years. In some of writ petitions, some facts are disputed and there are allegations of suppression of facts by the petitioners and objection of non-maintainability of the writ petitions of some petitioners due to lack of territorial jurisdiction of Principal Seat of the Rajasthan High Court and objection of 4 misjoinder of parties, therefore, only relevant facts for above purpose are narrated herein below. However, all the contentions have been considered together in the judgment and for convenience, the documents which have been referred from the files, have been referred for deciding all the writ petitions. The learned counsel for the parties agreed that the writ petitions may be decided by treating the reply of the RCDF to be in all the writ petitions as well as reply of other respondents may also be considered together.
(1)S.B.Civil Writ Petition No.6581/09:
This writ petition is by writ petitions, who are employees of Paschimi Rajasthan Dugadh Utpadfak Sahakari Sang Limited, Jodhpur and in the original writ petition, they have challenged resolution dated 30.6.2009 (Annex.16) which is the resolution of the annual general meeting of the said respondent-employer society wherein a resolution was carried that age of superannuation of the employees may be kept 58 years, after noticing the fact that the Managing Director of the RCDF has already increased the age of superannuation from 58 years to 60 years. In this petition, the petitioners' further contention is that the decision of the respondent is in contravention of the tripartite agreement (Annex.3) and for other reasons, taking a decision about the age of superannuation of the 5 employees of the respondent-society, is illegal and the order of the State Government(Registrar) dated 17.9.2008 is binding on respondent-RCDF and the employer-society. Further it has been prayed that if the circular dated 17.9.2008 gives power to respondent no.3(cooperative society) to decide on the question of age of retirement, then the same be quashed and set aside.
The petitioner also submitted an application for amendment of the writ petition. By this application, the petitioners want to implead (1) Principal Secretary, Co- operative Department, Govt. of Rajasthan, Jaipur, (2) Principal Secretary, Animal Hunsbandry, Govt. of Rajasthan, Jaipur, (3) Deputy Secretary, Animal Husbandry, Govt. of Rajasthan, Jaipur and Shri Ramchander Choudhary, Chairman, Ajmer Dugadh Utpadhak Sahkari Sang, Ajmer as party. The petitioners further want to take several new grounds in the writ petition. This application was opposed by respondent no.3-society. However, remaining said application pending, the parties argued the petition on merit in detail on the ground which are common in all the writ petitions. In this petition, there is no objection about the territorial jurisdiction and the writ petition has been filed by all the petitioners who are members of the respondent no.3-Cooperative society, which is situated within the territorial jurisdiction of this Court.
6(2)S.B.Civil Writ Petition No. 7168/09:
This petition has been submitted th petitioner Kishan Lal, employee of Churu Sahakari Dugadh Utpadak Sangh Ltd. praying for quashing of reslution dated 5.6.2009 (Annex.17) wherein the Board of Directors, after taking note of the objection of the Assistant Registrar, Cooperative Society and decision of the Managing Director of RCDF to increase the age of superannuation, decided not to increase the age of superannuation of the respondent-cooperative society of Churu. This decision was taken on the plea that since last three years, the respondent-society is running in loss. The petitioner also sought relief for quashing of the order dated 13.6.2009 retiring him on attaining the age of 58 years and the order dated 13.6.2009 which is the order cancelling the earlier order dated 22.9.2008 in the light of the decision dated 5.6.2009 for reducing the age of superannuation from 60 years to 58 years and order dated 15.7.2009(Annex.23) for taking charge from the petitioner.
In this petitition, the respondent no.3-Churu Sahakari Dugadh Utapadak Sangh Ltd. has submitted reply. (3) S.B.Civil Writ Petition Nos.8823/2009 and 8824/2009:
These petitions have been submitted by the petitioners who are employees of Pali Zila Dugadh Utpadak Sahakari Sangh Ltd., Pali Marwar and the said cooperative society submitted reply to the petitions. In these petition it has 7 been admitted that the respondent-society is member of the RCDF, with the plea that yet there is no share capital of the State in respondent-society. In these petition, there is no objection about the territorial jurisdiction of this Court. (4) S.B.Civil Writ Petitions No.8946/09:
The employes of Udaipur Dugadh Utpadak Sahakari Sangh Limited, Udaipur have preferred the writ petition on the basis of the same facts with same plea as has been raised in other writ petitions. In this also there is no objection about the territorial jurisdiction of this Court. The other pleas are the same.
(5) S.B.Civil Writ Petitions Nos.9000/09, 9001/09, 9002/09, 9003/09, 9004/09, 9005/09, 9007/09, 9008/09,9010/09 & 9413/09:
These writ petitions have been filed by the petitioners who are employees of respondent no.3-Uttari Rajasthan Sahakari Dugdh Utpadak Sarsh Ltd., Bikaner. In these petition, the petitioners challenged the order dated 1.9.2009 issued by the respondent-society in pursuance of the withdrawal of the order of the Managing Director of the RCDF by which the age of superannuation was increased and consequently the order of retiring the 14 employees including the petitioners and also challenged the order dated 31.8.2009(Annex.5), the order of RCDF. In these petitions also, the question of territorial jurisdiction of the 8 petitions is not involved.
(6) S.B.Civil Writ Petitions No.9046/09:
This writ petition has been preferred by the petitioner- employee of RCDF-the Apex Cooperative Society. The petitioner is Deputy Manager, Cattle Feed Plant, Jodhpur, as he has been sent by the RCDF of on said post. In this case also there is no objection of territorial jurisdiction as well as petition is against the decision of the Apex Society. (7) S.B.Civil Writ Petitions No.9104/09:
This writ petition has been filed by four writ petitioners and petitioners no.3 and 4 are employees of the Kota Zila Dugadh Utpadak Sahakari Sang Limited, Kota, whereas petitioner nos.1 and 2 are members of Udaipur Dugadh Utpadak Sahakari Sangh Limited, Udaipur and Sri Ganganagar Zila Dugdh Utpadak Sahakari Sang Limited, Hanumangarh. In this petition, petitioners no.3 and 4 are seeking relief against the society situated not within the territorial jurisdiction of the Principal Seat of the Rajasthan High Court.
(8) S.B.Civil Writ Petitions No.9471/09:
This writ petition has been preferred by the three employes of the Bhilwara Zila Dugadh Utpadak Sahakari Sang Ltd., Bhilwara and in this writ petition there is no objection about the territorial jurisdiction of this Court. (9) S.B.Civil Writ Petitions No.8626/09:9
This writ petition has been preferred by as many as 21 petitioners. The petitioner nos.1,3,4,5,6,7,8,9,10 and 11 are the employees of the Cooperative Societies Jodhpur, Bikaner, Banswara and Raniwada, whereas petitioner no..2- Union is of the employees of Ajmer Zila Dugadh Utpadak Sahakari Sangh Ltd., Ajmer and others are employees of Ajmer Dugdh Utpadak Sahakari Sangh Ltd. Ajmer. The detail facts referred in the judgment are same; in this petition and as in other petition and in this petition there is objection of territorial jurisdiction and objection of misjoinder of parties and suppression of facts. (10) S.B.Civil Writ Petitions No.9102/09:
This writ petition has been preferred by petitioner no.1 and 2 whose cooperative societies is situated within the jurisdiction of Principal Seat of Rajasthan High Court, whereas petitioners nos.3 to 7 are resident of Jaipur and, obviously, they may be employees of the RCDF, the office of RCDF is at Jaipur.
The employees of Union and employees of various Dairys have preferred these writ petitions and substantially claiming one relief that the employees of the various Dairys run by the Cooperative Societies are entitled to continue in service upto the age of 60 years in terms of the Government order dated 17.9.2008 and by virtue of order dated 19.9.2008 passed by the Managing Director of the 10 Rajasthan Cooperative Dairy Federation Limited (for short "RCDF"). Since all the matters have been heard together at the request of the learned counsel for the parties and in view of involvement of common question of law and facts, all these writ petitions are decided by this common judgment.
The Cooperative Societies registered under the Rajasthan Cooperative Societies Act, 1965 or under the same Act of 2001 are now governed by the provisions of the Rajasthan Cooperative Act 1956. The Cooperative Society may be "Apex Society", "Central Society", "Cooperative Society or Society" or "primary society". The Apex Society is defined in clause (a) of Section 2 of the Act of 2001. As per said definition, the "Apex Society" means a Society whose core object is to provide facilities for the operation of other societies affiliated to it and whose area of operation extends to the whole of the State of Rajasthan. The "Co- operative society" or "Society" as defined in clause (i) of Section 2 of the Act of 2001 means society registered or deemed to be registered under the Act of 2001. In this controversy we are not concerned with the primary Society and central Society.
Admittedly, the respondent-RCDF is Apex Society in terms of sub-section (a) of Section 2 of the Act of 2001 and other Societies, whose employees and unions have 11 preferred writ petitions, are the Cooperative Societies as defined in clause (i) of Section 2 of the Act of 2001. Member in any Apex Society or in Cooperative Society is defined in clause (p) of Section 2 which says that "Member" means a person joining in the application for the registration of co-operative society and a person admitted to membership after such registration in accordance with the Act of 2001 and the rules and the bye-laws and includes a nominal and an associate member. Representatives of the Cooperative Societies involved in this controversy were signatories in the application for registration of Apex Society RCDF. Therefore, according to the petitioners, all the Co- operative Societies( are also referred as Union or dairys), with the signatures of whose representatives the RCDF was constituted, became the Member of the RCDF in terms of Section 2(p) of the Act of 2001. It is stated by the petitioner that employees working in all the Societies are under the direct supervision and control of the RCDF and the RCDF being the apex body, is empowered to frame service regulations and in exercising that power, the RCDF framed the service regulations, which are known as Rajasthan Cooperative Dairy Federation Employees (Non-Workmen) Service Regulations, 1980. It is also submitted that the State Government has power to issue orders and directions to the RCDF and other Cooperative Societies under the Act 12 and, therefore, the RCDF, in pursuance of the Government order, issued an order dated 16.6.1990 (Annex.2) that all the Unions(Cooperative Societies) shall adopt Model Service Rules, Cadre and Recruitment Rules, Standing Orders as suggested by the RCDF. The said clause which is relevant for the purpose of deciding these writ petition is required to be quoted here:-
"12. That the Milk Producers Cooperative Unions shall adopt Model Service Rules, Cadre and Recruitment Rules, Standing Orders as suggested by RCDF from time to time and shall not rescind/alter or modify these rules without the prior approval of the Federation."
Then it is submitted that in view of the order passed by the Government, obeyed by the RCDF and other milk Unions(Co-operative Societies), all the Unions were directed to execute agreement with the RCDF. The petitioner placed on record copy of the model agreement in S.B.Civil Writ Petition No.8626/09. In this model agreement, clause (3) is the verbatim the same clause (12) quoted above. By virtue of above agreement, all the dairys (Co-operative Societies) again agreed to follow all Service Rules and conditions prescribed by the RCDF for the employees of the Societies signing the agreement.
The petitioners' counsel with the help of various provisions under the Act of 2001 submitted that there 13 cannot be different service conditions, one applicable for the Apex Society and another for its signatory members of the Society. It is also submitted that the petitioners' employer- Societies are the working societies, whereas the RCDF has no working of its own and they are charging some commission from the societies for rendering services.
It is submitted that there was demand of various organisation to increase age of superannuation of the employees of various organisations, Corporations, Board and Companies etc. from 58 years to 60 years. The State Government, in pursuance of demand raised by several organisations, issued circular dated 26.8.2008 declaring enhancement of the age of superannuation of the employees of the Corporation, Board, Companies under the purview of Bureau of Public Enterprises from 58 years to 60 years with immediate effect. The said enhancement of age of retirement was made applicable to all those employees who were due to retire in the month of August, 2008. According to the petitioners, since the RCDF is also akin to public enterprises inasmuch as the Government is having absolute control over it and the Government has made substantial contribution, therefore, the employees of the RCDF, various milk Unions(societies) submitted their representations to the Government for enhancement of age of retirement of employees of these Cooperative Societies. 14 However, no decision was taken by the Government and the employees were likely to retire from 31.8.2008, therefore,the RCDF passed the order on 15.9.2008 laying down that no employee shall be retired in the month of August, 2008 in the RCDF and milk Unions and they shall continue as such till 30.9.2008 at their respective places, however, such employees shall not be paid(salary) in case a decision is reached to keep the retirement age as 58 years. In view of the said order, none of the employee of the RCDF and employees of other societies retired on attaining age of 58 years by 31.8.2008. Ultimately, on 17.9.2008, the Registrar, Cooperative Societies, exercising power conferred by rule 39 of the Rajasthan Cooperative Societies Rules, 2003, issued order to allow Cooperative Societies to increase age of superannuation of employees of the Societies and classified societies in two categories; one where there is no share capital of Government nor Government has provided any aid to Cooperative Societies, then those Societies' Board of Directors were given liberty to enhance age of superannuation of their employees from 58 years to 60 years if it is in the interest of society.
The another set of societies were those societies wherein the Government interest is involved by way of capital investment or by way of contribution of Government's interest. For these type of societies, the 15 Board of Directors of the Societies were directed to take a decision for enhancement of age of superannuation of employees provided the society concerned is running in profit for past three years and there was no loss in past three years and number of persons working are not beyond the sanctioned staffing strength. The Board of Directors were directed to take a decision for enhancement of age of retirement on finding above facts and on finding that the decision to increase age of superannuation will be in the interest of society. Not only this but as per sub-clause (ख) of clause (2) of order dated 17.9.2008, the societies who were not running in profit for last three years and were in losses and or whose employees were more than the sanctioned strength, then the Board of Directors were allowed to take a decision after considering the business of the Society and interest of Society, whether it is appropriate to increase the age of superannuation from 58 years to 60 years. In such situation, the Board of Directors were required to give their resolution to the Registrar, Cooperative Society, who may pass appropriate order.
In view of the order dated 17.9.2008, the petitioner's contention is that in a case falling under sub-clause (क) of clause 2 of order dated 17.9.2008, no option was given to the Board of Directors to take a decision not to enhance age of superannuation from 58 years to 60 years, rather say, 16 according to the petitioners, the Board of Directors were required to take a decision to increase age of superannuation. It is also submitted that for this class of Societies covered under sub-clause (क), the matter of increase in age of superannuation is not required to be even forwarded to the Registrar of the Cooperative Society. However, in case where the society was in losses during last three years and was not earning profit (no loss no profit) and in case the staff is more than sanctioned strength and even then if Board of Directors decides to increase the age of superannuation of the employees of the society to 60 years then that society is required to take a decision and forward it to the Registrar, Cooperative Society. It is submitted that in that situation also, the Registrar cannot reject the proposal without any lawful and valid reason. Therefore, according to the petitioners, in view of the order dated 17.9.2008, all the employees of all the societies could have retired only on attaining the age of 60 years.
The petitioners submitted that the meeting was convened on 15.9.2009 of the Board of Directors of the RCDF and in that meeting resolution No.109(13) was passed. By this resolution, it was decided that the employees shall continue to work on same conditions as given in order dated 30.8.2008 upto 30.9.2008. In this resolution No.109(13), the Managing Director of the RCDF 17 was authorised to pass order for enhancing the age of retirement upon receipt of the information(order) from the Government. It is submitted that in furtherance of the said resolution No.109(13) dated 15.9.2009, the Managing Director issued order on 19.9.2008 and it was acted upon and none of the employee of any Cooperative Society was retired on attaining age of 58 years.
It is submitted that one Ram Chandra Choudhary, Ajmer Zila Dugdh Utpadak Sahkari Sangh Limited, Ajmer challenged the order passed by the Managing Director of the RCDF dated 19.9.2009 and the orders dated 17.7.2009 passed by the Deputy Secretary, Animal Husbandry, Government of Rajasthan, Jaipur as well as the order dated 22.9.2008 passed by the Managing Director, Ajmer Zila Dugdh Utpadak Sahkari Sangh Limited, Ajmer by preferring revision petition before the Hon'ble Minister, Cooperative Societies. According to the petitioners, any order passed by the Registrar or State could not have been challenged by way of revision under Section 107 of the Act of 2001. However, in the said revision petition, neither the employees nor their Unions were impleaded as parties against whom relief was sought by said Ram Chandra Choudhary. In said revision, Hon'ble Minister passed the interim order on 29.9.2008 and stayed the impugned orders.
18
It will be worthwhile to mention here that the RCDF submitted reply in one of the writ petitions wherein the RCDF, in reply to para 11 of the Writ Petition without denying the petitioner's contention that resolution No.109 (13) was taken in the Board of Director's meeting of RDCF, stated that "para 11 of the writ petition is admitted. The Board of Director has power to resolve policy matter. The minutes of the Board of Director of respondent no.4(i.e. Minutes 110(8)) has been deferred. The photo copy of minutes dated 23.10.2008 is enclosed as Annex.R-4/1." The resolution NO.109(13) is relevant fact as well as seriously disputed fact, as has been disputed by the respondent- Society and private respondent Ram Chandra Choudhary and it has been submitted that no resolution N0. 109(13) as alleged by the petitioner was passed by the Board of Directors of the RCDF and according to the respondent- Society, the copy of resolution containing resolution No.109 (13) produced by the petitioner is forged and fabricated document. However, subsequently, it was stated in arguments that in fact, a copy of draft resolution which was not put for consideration of the Board of Directors, has been placed on record by the petitioner to take benefit of that resolution which was not passed by the Board of Directors. To find out truth, this Court directed the RCDF to produce the original record, upon which the original records were 19 produced for perusal of the Court which has been perused by the Court.
In sum and substance, the contentions of the petitioners are that the Apex Society-the RCDF has right to take a decision for enhancement of the age of superannuation of employees of the RCDF as well as for employees of the affiliated societies. The affiliated societies are bound by the directions issued by the RCDF by virtue of its position as Apex Society as well as because of the fact that by becoming signatory to the Registration of the RCDF as Society under the Act of 2001. The society became member of the Apex Society, therefore, the affiliated societies are bound by the decision of the RCDF. There cannot be different age of superannuation, one for the Apex Society's employees and another for affiliated societies' employees. It was a policy decision of the Government to increase the age of superannuation conveyed to the society by the order of the Registrar, Cooperative Societies dated 17.9.2008. As per order dated 17.9.2008, the petitioners- employees of the RCDF as well as employees of the Societies are entitled to continue in service upto the age of 60 years. Then the employees of the Societies and employees of the RCDF could not have been retired on attaining the age of superannuation after the order of the Managing Director of the RCDF dated 19.9.2008, which was 20 issued after the order of the Registrar, Cooperative Societies dated 17.9.2008 as well as after the resolution No. 109(13) of the RCDF dated 15.9.2008. On facts, the RCDF- the Apex Body, for all the societies is in profit and the strength of the employees in regular cadre is less than sanctioned strength of the employees of the society individually and, therefore, even the Board of Directors of the Societies had no option but to take a decision if needed to increase the age of superannuation of the employees of the societies(however, it has been emphatically submitted that there was no need for it). It is also submitted that the interim order passed by the Hon'ble Minister dated 29.7.2009 in the revision petition of respondent Ram Chandra Choudhary, the Chairman of one Society, is wholly without jurisdiction as well as not binding upon the employees of all the societies referred above. The order dated 31.8.2009 issued by the Deputy Secretary, from the Department of Animal husbandry is wholly without jurisdiction as the State authority or the State Government had no jurisdiction to withdraw the order passed by the Managing Director of the RCDF dated 19.9.2008 and, therefore, the consequential order dated 31.8.2009 passed by the RCDF is also illegal.
The contention of the learned counsel Shri P.P. Choudhary appearing on behalf of Shri Ram Chandra 21 Choudhary is that under the Act of 2001, the final authority in a Cooperative Society vests in general body of the Members as per Section 24 of the Act of 2001. Each Cooperative Society is independent and autonomous body and, therefore, that society alone can decide for itself as well as may prescribe service conditions for its employees. The Government has no role to play in the affairs of any society so as to issue directions. However, the Registrar, Cooperative Society has been given some power under the Act of 2001 who is appointed as per sub-section (t) of Section 2 to perform the function of the Registrar, Cooperative Society under the Act. It is also submitted that the State Government has power to make rules under Section 123 of the Act of 2001 and as per clause XXXII if sub-section (1) of Section 123, the State Government can frame the rules prescribing qualifications of employees of the society and can prescribe conditions of their service including discipline and control and, therefore, even the Registrar has no jurisdiction to prescribe any condition of service of any employee. The learned counsel Shri P.P. Choudhary submitted that in view of statutory provisions in the Act, giving power to the Registrar, for prescribing conditions of service including discipline and control of the employees of the societies by sub-rule (1) of rule 39, is contrary to the provisions made in the Act and, therefore, 22 any power exercised by the Registrar in such matter is in excess of jurisdiction of the Registrar and, therefore, cannot prevail over the provisions made in the Act. Even though it has been contended that the Registrar, Co-operative Societies has no power to prescribe service conditions for the employees of the any society and that power vests only in the State Government or in the general body of the society which is the supreme body for the society as per Section 24 of the Act of 2001 the learned counsel for the petitioners frankly admitted that this issue came up for consideration before the High Court in the case of B.N.K. Sahakari Wholesale Upbhokta Bhandar Ltd. v. Prescribed Authority under Rajasthan Shops & Commercial Establishment (1986(1) WLN 605), wherein it has been held that the Registrar has jurisdiction to prescribe condition of service for employees of the Cooperative Societies under Rule 41 of the Co-operative Societies Rules,1966 and said Rule 41 is valid. Further, the Division Bench of this Court in the case of Mohan Lal vs. Jodhpur Central Cooperative Bank & others (RLW 1994(1) 384) held that rule 41 of the Rules of 1966 has general application and the Registrar has been authorised to frame the rules laying down the conditions of service of the employees of the Cooperative Societies and this rule is not ultravires of the Act of 1965 or Sections 146 and 148 of the Act of 1965. The learned counsel for the 23 petitioner also submitted that the view taken by the Rajasthan High Court as above, has already been upheld by the Hon'ble Supreme Court. The provisions as were in the Act of 1956, are also in the Act of 2001.
The learned counsel Shri P.P.Choudhary vehemently submitted that all cooperative societies are independent bodies and their final authority vests in the general body of the cooperative society as per Section 24 and, therefore, any cooperative society cannot be subordinate to any other cooperative society even it may be a member in apex cooperative society. It is submitted that the Act also nowhere provides that any cooperative society shall be subordinate to Apex society if any member or authorised representative of the cooperative society was signatory to the proposal for registration of apex cooperative society. Therefore, any decision taken by the Apex Cooperative Society for enhancing the age of superannuation of employees is not binding upon the other society affiliated to the apex cooperative society. However, on facts it has been stated that the Apex cooperative society, i.e. RCDF, also has not resolved the increase in age of superannuation and the resolution relied upon by the petitioner No.109(13) dated 15.9.2009 was never passed by the Board of Directors of the even RCDF and the order issued by the Managing Director of the RCDF dated 19.10.2008 is wholly without 24 jurisdiction,and is not binding upon the other respondents- societies. It is also submitted that the copy of the resolution produced by the petitioners is forged and fabricated document, which is clear from the original record of the RCDF.
The learned counsel Shri P.P.Choudhary vehemently submitted that in fact in the affairs of all Societies, there was total lawlessness and there was clear fight between the two groups who were responsible for management and for the affairs of the cooperative societies as well who were responsible for management of the apex cooperative society RCDF. According to learned counsel Shri P.P.Choudhary, the RCDF used to send the representatives to affiliated cooperative societies and to give benefit to those persons, the Managing Director of the RCDF issued order dated 19.9.2008. It is also submitted that all the elected members or real representatives of the society in the Board of Director were against any resolution for increase in age of superannuation which is apparent from the few documents placed on record by both the parties, wherein when there is decision to refuse age of superannuation, there is note of decent by representative of the management either from the RCDF or the government nominee who was subordinate to the Managing Director of the RCDF and the Managing Director was member of the Indian Administrative Service. 25
The learned counsel Shri P.P. Choudhary and Shri Rajesh Joshi frankly admitted that in fact there are no service rules framed by the society except one Paschimi Rajasthan Dugadh Utpadak Sahakari Sang Ltd, Jodhpur. The learned counsel Shri Rajesh Joshi has shown the service Rules of this Jodhpur Society, which reveals that same service rules framed by other body were adopted by this Jodhpur society and those rules were not framed by the Jodhpur society itself. Be it as it may be. The fact remains is that, according to the counsels for the dairys, there are no services rules framed by them for their employees and the cooperative societies are running since several years. No complete service conditions have been prescribed by the Registrar of the Cooperative Societies and in view of the decisions given in the B.N.K. Sahakari Wholesale Upbhokta Bhandar Ltd.(supra) and Mohan Lal(supra), the Registrar has power to prescribe the condition of service of the employees of the societies and that authority also did not frame any service rules for the employees of the society.
The learned counsel for the respondents including the learned counsel appearing for the RCDF Shri D.K. Parihar, learned counsel Shri Rajesh Joshi for all the Apex Society/societies, who are respondents in these petitions and learned counsel Shri P.P. Choudhary on behalf of the private respondents submitted that the order dated 26 17.10.2008 issued by the Registrar, Cooperative Societies neither has directed nor could have directed the the cooperative societies to take a decision on the issue for increase in the age of superannuation of the employees of their society. Therefore, the societies were not under obligation to consider and decide in either way whether it is appropriate to increase the age of superannuation of the employees or not. It is further vehemently submitted that in these writ petitions, it has not been prayed that the the Board of the Director of the society be directed to convene the meeting and consider the issue whether it will be in the interest of the society to increase the age of superannuation after taking into account the order dated 17.9.2008 issued by the Registrar, Cooperative Society. The petitioners proceeded on assumption that in view of the order issued by the Managing Director of the RCDF dated 19.9.2008, they are entitled to continue in service after the age of 58 years, whereas the order dated 19.9.2008 was issued unauthorizedly by the then Manging Director of the RCDF, as he had no authority to increase the age of superannuation of the employees of even employees of the RCDF and further the order has not been passed by the Board of Directors as required by order of the Registrar, Cooperative Society dated 17.9.2008 and further even if said order was passed by the Managing Director of the 27 RCDF, then that order, at the most can be applicable for the employees of the RCDF, but cannot be made applicable to the members of other society who are affiliated with the RCDF.
The learned counsel Shri Rajesh Joshi vehemently submitted that from original record, it is clear that the Board of the Directors of the RCDF were never given any agenda for increase in the age of superannuation and the original minutes clearly shows that the matter was not put up for consideration before the Board of Directors in its meeting and, therefore, merely on the basis of the order passed by the Managing Director of the RCDF dated 19.9.2008, the petitioner cannot get any relief. It is also submitted that all the societies who took up the issue for consideration in their Board of Director's meeting resolved against the increase of age of superannuation and that decision was in the interest of the society but if the Board of Director of any society has not considered the issue after issuance of order dated 17.9.2008 by the Registrar then also they within their discretion, decide not to consider this issue and, therefore, they within their jurisdiction yet have not taken a decision to increase age of superannuation of the employees and, therefore, none of the employee can continue on the post after attaining the age of 58 years.
I considered the submissions of the learned counsel for 28 the parties and perused the facts of the case.
So far as the contention of the learned counsel for the petitioner and the learned counsel for the respondents that in fact there was total lawlessness in the affairs of the all the societies and their working is concerned, this Court has no hesitation in holding that there was total lawlessness and the vested interest of two groups were pitted against each other, one was bent upon to give benefit to the employees and another was deadly against the increase of age of superannuation. It is very clear that the State of Rajasthan declared a policy to increase the age of superannuation of the employees of the various bodies which is clear from Annx.10 dated 30.8.2008 issued by the Managing Director- the RCDF submitted in the Writ Petition No. 8581/09, wherein it has been projected that Hon'ble the Chief Minister in his speech declared the benefit of increase in the age of superannuation for various bodies working in the State of Rajasthan. Then the Managing Director of the RCDF even before passing of the order by the Registrar, Cooperative Society dated 17.9.2008, issued order on 30.8.2008 having No. RCDF/Estt./F.1(C)/2008/19825-31 declaring that the employees who were due to retire in the month of August, 2008 at the RCDF and Milk Union will continue in service upto 15.9.2008. This order was obeyed by all respondent- Cooperative Societies and not only by the 29 Apex Society RCDF. None of the cooperative society then objected to this order and their employees remained in service even after crossing the age of 58 years. The Registrar, who as per the law interpreted by this Court long ago in the cases of B.N.K. Sahkari Wholesale Bhandar Limited and in the case of Mohan Lal (supra) can prescribe the service conditions and earlier decided the age of superannuation of the employees of the cooperative societies did not objected to this order passed by the Managing Director of the RCDF. Neither the Registrar, Cooperative Societies nor Societies superannuated the employees even after the order of the Registrar or when the Jaipur Bench of this High Court vacated the interim order, continuing the service of the employees of these cooperative societies. No body knew where the governance of the societies was? In continuation of said order dated 30.8.2008, another office order was issued by the Managing Director of the RCDF dated 15.9.2008, which is Annex.5, whereby the Managing Director, RCDF informed that the employees of the RCDF and Milk Union will continue (in service) till 30.9.2008 and they will not be paid for the period from 1.9.2008 to 30.9.2008 in case a decision is reached to keep the retirement age as 58 years and they would be deemed to have been retired on 31.8.2008 from their respective places. Copy of this order has been placed 30 on record of the file of Writ petition No.8626/09 as Annx.5. As stated above, the order issued by the Managing Director of the RCDF was not only obeyed by the the RCDF but by all the societies. If the Managing Director, RCDF issued said order illegally or unauthorizedly and without there being any order of competent authority/body, then all so called autonomous and independent societies why obeyed that order has not been explained by any of the respondent society or other respondent. And what the Registrar, Cooperative Societies was doing? It appears from the facts that when the Managing Director of the RCDF changed, the fight begin and then records of the RCDF was manipulated which will be clear from the facts , which I shall be referring hereinafter at relevant place.
Then on 17.9.2008 the Registrar, Cooperative Society issued order Annx.6 by exercising power under Rule 39(4) of the Rajasthan Cooperative Societies Rules, 2003 ( which in fact was under sub-rule (1) of Rule 39) prescribing guidelines for taking a decision for increase of age of superannuation of the employees of the cooperative societies. The cooperative societies were categorised in two categories; one, the cooperative societies wherein no government capital is involved for which in the order dated 17.9.2008, it is provided that the Board of Directors of such societies may take decision to increase age of 31 superannuation of their society's employees.
The societies, wherein government interest was involved, were bifurcated into two groups; one in which the societies were were running in net profit and the employees strength was not beyond the sanctioned strength and in the opinion of the Board of Director, it will be in the interest of the society to increase the age of superannuation. In that case, the Board of Directors may take decision to increase the age of superannuation of their employees. In the second category of societies, those societies were put together who were in loss in any of past three years and whose working strength of the employees was beyond the sanctioned strength, then also the Board of Directors were given permission to take a decision that if it is in the interest of the society, then to increase age of superannuation from 58 years to 60 years. In this second category of societies, more specifically, who were not in profit in any year in past three years and whose working staff strength is beyond the sanctioned strength then it was provided that the resolution of the Board of Directors to increase the age of superannuation shall be forwarded to the Registrar of the Cooperative Societies, who shall pass the appropriate order. If the contention of the respondents including of the RCDF is accepted then according to them, the Registrar's order dated 17.9.2008 was no direction to 32 societies to convene the meeting of the Board of Directors to take a decision about the issue of superannuation age of the employees. This stand of the respondents clearly suggests that the Co-operative societies/Board of Directors of the societies decided not to decide what is in the interest of the society. The order dated 17.9.2008 fundamentally requires a decision of the Board of Directors of the Society by application of mind on the issue what is in the interest of the society. In all the three categories of the societies, it has been specifically mentioned that it is for the Board of Directors to take a decision whether increase of age of superannuation is in the interest of the society or not. Then how the Board of Directors could refuse to consider this issue. If giving of this benefit to the employees is in the interest of societies, how it can be denied and what can be justification for this denial ? Some of the Directors or Members of the Society without putting the proposal before the Board of Directors, could not have taken a decision that it is not in the interest of the society to increase the age of superannuation.
Before adverting to other issues, it is necessary to see how the RCDF worked at the relevant time. The petitioner placed on record copy of the decision of the Board of Directors as Annex.7 in the Writ Petition No.8626/09, wherein total number of resolutions were put for 33 consideration of the Board of Directors of RCDF and the resolutions were numbered as resolution Nos.109(1) to No.109(13). Resolution No.109(13) is a decision whereby it has been resolved that the employees of the society whose service tenure has been extended vide office order dated 30.8.2008, which has been issued by the Managing Director of the RCDF, extending the service of the employees upto 15.9.2008 and who were to retire by 31.8.2008, is further extended upto 30.9.2008 on same conditions and upon receiving any directions from the State Government, the Managing Director of the RCDF is authorised to pass order for increase in the age of superannuation. In this resolution No.109(13), it was also resolved that since the salary and allowances are given to the employees of the RCDF as is given to the Government employees, the Managing Director of the RCDF will be authorised to issue appropriate order of giving benefit of 6th Pay Commission. Copy of this minutes of the Board of Director of the RCDF dated 15.9.2008 was obtained by the petitioners under the Right to Information Act and was supplied by the competent authority to them and has been placed on record by the petitioners. As already noticed, the RCDF submitted its reply to this fact referred above about resolution NO.109(13) in Writ Petition No.9102/09. The petitioner narrated the facts about the above resolution in para no.11 of the Writ Petition 34 No.9102/09 and it has been replied as under:-
"Para no.11 of the writ petition is admitted. The Board of Director has power to resolve the policy matter. The minutes of the Board of Director of respondent no.4 (minute No. 110(8) has been deferred). The photo copy of the minutes dated 23.10.2008 is enclosed as Ex.R-4/1.
Without denying the existence of the minutes of the Board of Directors, copy of which has been placed on record as Annex.5, the respondent- the RCDF without placing on record the copy of resolution dated 15.9.2008 placed on record copy of the resolution dated 23.10.2008 as Annex.R- 4/1, which is copy of the minutes of the Board of Director dated 23.10.2008 and not the copy of the minutes of the Board of Director dated 15.9.2008. In the minutes of the meeting dated 23.10.2008, a resolution NO.110(8) is there, wherein this issue of increase in age of superannuation said to have been considered. Both the resolutions are relevant. Resolution NO.109(13) is as under:-
''पस व सख 109 (13) : Matter of increase of
age of superannuation
in respect of RCDF
employees.
आरस ड एफ करच रर क
अध व र क आ बढ न" क"
समबन र% ।
ब द रवच र -रवरर ह ननर कक ग कक र ज
सरक र स" इस समबन र% उधच स1चन मरलन" क
35
31 अगस , 2008 क4 स"व ननव 5 ह4न" व ल" करच रर
ज7नक4 क ल आद" र कर क आरस ड एफ/
सस9 /एफ. 1 (स )/2008/19825-31 ददन क
30 अगस , 2008 क" 7रर " 15 मस मबर, 2008 क
आद" र र% द; हई र = क" अनस र क कर " रहन" क"
मलए कह ग 9 , व" 30 मस मबर, 2008 क उनह;
र = क" अ न क कर " रह% ग"। 30 मस मबर, 2008
क क अवध र% र ज सरक र स" स1चन प प ह4न"
पर पबन सच लक आरस ड एफ क4 आरस ड एफ क"
करच रर क अध व र क आ बढ न" क" मलए
अध क5 कक ग ह@ ।
अध व र क आ बढ न" क" रसल" क" स 9 ह;
रज सरक र द र र ज करच रर क" मलए छठ% व" न
आ 4ग क मसफ ररर" न4दDकफक"रन न. एफ. 11 (7)
एफ.ड . (रलस)/ 2008 ददन क 12 मस मबर, 2008
ल ग1 करन" क" ननर पर भ चच हई। चकक
1
आरस ड एफ र% र ज करच रर क रह ह; व" न एव
भत" दद " 7 " रह" ह@, अ : इस समबन र% भ
सच लक रणडल न" पबन क सच लक आरस ड एफ क4
रज सरक र स" स1चन / आद" र मरलन" क" उपर न
आरस ड एफ करच रर क4 छठ% व" न आ 4ग क
मसफ ररर" ल ग1 करन" क" मलए अध क5 कक ह@ ।
The copy of the resolution No.110(8) submitted by the RCDF of meeting dated 23.10.2008 is as under:
पस व स. 110 (8) : आरस ड एफ, इसक ईक ई
एव इसस" समबद ज7ल
दग सघ क" अध क रर /
करच रर क अध व र क
आ 58 व स" 60 व
करन" ब ब ।
36
सच लक रणडल क" सभ ननव धच सदस न"
आरस ड एफ एव समबद ज7ल सघ र% अध व र क
आ क" समबन र% तक ल;न पबन सच लक द र
7 र; आद" र ददन क 19.9.2008 क रवर4 कक 9
उक आद" र क4 ननरस करन" क रग क एव
अध व र क अ 58 व स" 60 व करन" क"
तक ल;न पबन सच लक क" ननर स" सहर नह;
9"। ननव धच सदस क र 9 कक आरस ड एफ र%
अध व र क आ 58 व ह; रख 7 न च दहए। इस
समबन र% रज7सO र सहक र; समरन स" र गदरन
चह ग , ज7स पर रज7सO र रह4द क" ददन क
17.9.2008 क4 7 र; आद" र एव ददर ननदP र क" ब र"
र% रवस र स" ब 9 र व क कक कक 7 र;
आद" र क अनप लन क 7न च दहए 9 ल"ककन
ककनह; क रर स" नह; क गई, ज7सक व7ह स" ह
जस9न उतपनन हई। उसक" पशच S अध क रह4द न"
र व क कक कक फ"डर" रन एक सहक र; सस9 ह@
इसमलए सहक र; रवभ ग एव रज7सO र सहक र; समरन
द र 7 र; आद" र एव ददर ननदP र क अकरर: प लन कक "
7 न" क सननजV क 7 न च दहए और उनक उललघन
क न1न क उललघन करन" सदश ह@ ।
तपशच S रवस र स" रवच र-रवरर उपर न रज7सO र,
सहक र; समरन न" उक पस व क4 ड"फर (Defer) कक "
7 न" क सल ह द; ज7स पर सभ सदस न" सहरन
7 ई एव दनस र पस व क4 सवसमरन स" ड"फर
(Defer) कक ग ।''
37
It was contended by all the counsels for the petitioners that in fact resolution NO.109(13) was passed in the meeting dated 15.9.2008 and thereafter has been manipulated which is clear from the record of the RCDF, whereas counsel for the private societies and private parties vehemently submitted that no such resolution like resolution No.109(13) was put for consideration of the Board of Directors nor it was part in agenda. It will be relevant to mention here that the resolution NO.109(13) was not in the agenda and was not placed in the Board of Directors meeting of RCDF, is not the case of RCDF but other societies and private parties took this plea that too, firstly, arguing that the copy of the minutes of the Board of Director's meeting dated 15.9.2009 produced by the petitioner is forged.
I perused the original record produced by the learned counsel appearing for the RCDF. The note-sheets prepared for convening the meeting of the Board of Directors from 23.8.2008 to 14.10.2008 is as under:-
"20/N Fair typed letter alongwith
approved agenda items (& information as
required & directed by the Chairman RCDF duly appended with concerned items) is placed below for kind perusal & signatures.38
MD sd/
RCDF 23.8.08
sd/-23.8.08
21/N Sd/ 23.8.
22/N उपर4क 10 ए7"णड आईDमस (book Form र%) क" अन ररक ननमन ए7"णड आईDमस सच लक रणडल क ब@ठक र% रख"
7 न" ह@ :
पस व सख 109 (11) 74 प च ददवस सप ह क"
समबन र% ह@ (Flag ''A'')
पस व सख 109 (12) 74 धचतYडगढ- प पगढ दग सघ
क4 सदस द" न" ह" ह@.
23/N इसक" अन ररक र[न"7र (प एणड ए) द र आरस ड एफ
करच रर ह" अध व र क आ 58 व स" 60 व करन"
समबन पस व अनर4दन 9 पबन सच लक रह4द क4
अलग स" भ"7 ग ह@।
24/N उपर4क अन ररक पस व क रह सच लक रणडल र% रख
7 न पस रव ह@।
25/N पबन सच लक Sd/ 12.9.2008
आरस ड एफ
26/N Proposals claimed above (including that of superannuation age enhancement) on 14.0.08 placed in the book of agenda.
Sd/- 14.9.08 27 सच लक रणडल क 109 क ब@ठक क क व ह; सलगन कर अनर4दन ह" प"र ह@ । प.स. 109(11)स" 109 (13) क क रववरर ननदP र नस र ह@।
28 पबन सच लक
आरस ड एफ Sd/ 16.9.08
39
29 सच लक रणडल क 109 व ब@ठक क क व ह; रववरर
पबन सच लन, आरस ड एफ रह4द द र उपर4क नस र
(प@र 27/N) अनर4दद कर दद ग 9। दपर न
रववरर उप पबन क (गप नन कक ) एव कन क सह क
अध क रह4द क" र ध र स" अध क रह4द क4 प"र
क गई 9 ।
ब@ठक क क व ह; क" रववरर क पन अध क रह4द
आरस ड एफ क" अनर4दन 9 मभ7व 7 न पस रव ह@ ।
Sd/ 10.10.08
पबन सच लक
आरस ड एफ
अनर4दन 9,
Sd/ 10.10.
अध क, आर.स .ड .एफ.
सहक र; अध नन र, नन र एव फ"डर" रन क" उप
नन र नस र ब@ठक क क व ह; रववरर एव ननजV सर
र% 7 र; कक " 7 न" क प व न ह@ । उक ब@ठक क क व ह;
रववरर तक ल;न पबन सच लक क4 सर4ध कर भ"7
दद ग 9 परन उस पर उनह न" क4ई क व ह; नह;
क 9 आ7 इस क व ह; रववरर क4 भ"7 7 न
अध नन र व नन र क" रवपर; ह@ । इसमलए उपर4क भ"7"
ग " क व ह; रववरर स" र[ सहर नह; ह1। अ : अनर4दन
नह; कक 7 रह ह@।
सच लक रणडल क आग र ब@ठक ददन क 23.10.08 क4
कर द; गई ह@ । अ : 109 व ब@ठक क सरस ए7"णड पन:
आग र सच लक रणडल क ब@ठक र% रख 7 व"।
सच
1 न 9 प"र ह@ ।
40
Sd/ 13.10.08
32 पबन सच लक
Sd/ 13.10.08
33 Secy GM (P) आद" र नस र पन: अनर4दन 9 व अवल4कन 9 पस अध क रह4द Sd/ 14.10.08 34 नन मर पस व सख 1-10 (एक स" दस) अनर4दद कक "
7 " ह@ ।
35 अन ररक पस व सख 11 स" 13 क सहर नह; ह1।
अ : अनर4दद नह; कक " 7 " ह@ । आग र सच लक
रणडल क ब@ठक र% पन: रख मलए 7 व"।
पबन सच लक Sd/ 14.10.08
36 Sd/ 14.10.
37 GM (P) :Minutes para 34/N & 35/N क" अनस र
सर4ध कर पस ह@ ।
Sd/ 14.10.08
पबन सच लक
आरस ड एफ
Sd/ -''
As per Note 22/N, in addition to 10 items as agenda for the meeting of the Board of Director, it was proposed that one item for increase in age of superannuation of the employees from 58 years to 60 years may also be placed before the Managing Director so that that matter may also be placed before the Board of Director. This proposal dated 12.9.2008 made in note 23/N was approved by the Managing Director and on 14.9.2008 it was directed that 41 the matter be placed in the book of agenda. The note 27 dated 16.9.2008 reflects that in the meeting 109 of the Board of Director, resolution no.109 upto 13 resolutions were considered and were placed before the Managing Director of the RCDF, who approved the same on 15.9.2008. Then for the first time, after 27 days, on 10.10.2008, there is a note that the minutes of the Board of Director of meeting 109 have been approved and, therefore, copy may also be sent to the Chairman of the RCDF. Then on 13.10.2008, the Chairman of the RCDF observed that as per the rules and bye-laws of the federation, the minutes of the meeting, obviously of the Board of Director, should have been issued in fixed time. He also observed that the then Managing Director of the RCDF has sent the resolution after amending it and, therefore, the minutes which were sent were contrary to the rules and, therefore, he is not agreeing with the minutes and is not approving the minutes. He also directed that since meeting of the Board of Directors is likely to be convened on 23.10.2008, therefore, the complete agenda of meeting 109 be placed before the Board of Directors on 23.10.2008. Then on 14.10.2008, the Chairman reported that he is approving resolution 1 to 10 of obviously of meeting no.109 but he specifically mentioned that for additional resolution nos.11 to 13, he is not giving consent. Then he 42 ordered that these resolutions be placed again in the next meeting of the Board of Directors. On 14.10.2008, the amended minutes were placed before the new Managing Director of the RCDF, who approved those minutes by signing on the note-sheet.
From the minutes referred above, it is clear that before meeting 109 of the Board of Directors of the RCDF was convened, the proposal No.109(13) was also ordered to be placed in the agenda and that decision was approved by the Managing Director of the RCDF. The contention of private respondent and of learned counsel for other societies that resolution No.109(13) was never the agendas is absolutely incorrect statement and at the cost of repetition, it is stated that resolution was not the part of agenda, was not the case of RCDF either in reply or in arguments. This resolution No.109(13) was never withdrawn and as per the note 27, the minutes were drawn on 16.9.2008 and were placed before the Managing Director and he approved it. The Chairman of the RCDF had any authority or power to amend/alter or modify or cancel the minutes of the Board of Directors, is not the case of any of the respondents, either RCDF or of other Societies. The minutes of the meeting of Board of Directors drawn could have been corrected only by the Board of Directors and not only by one of the Member of the Board may he be 43 Chairman. Then the minutes book which has been shown in the court, does not contain resolution NO.109(13) and it has not been explained and made clear by the RCDF that if the resolution No.109(13) was not put for consideration of the Board of Directors, then who ordered for not putting said resolution for consideration before the Board of Directors and how there is a reference of resolution No.109 (13) in the minutes referred above. If there was no resolution NO.109(13), then how on 14.10.2008, the Chairman of the RCDF could have recorded his note that he is not agreeing with the resolution nos.11 to 13, obviously of meeting of 109. The learned counsel for the cooperative societies and not by the the RCDF, it has been submitted that the resolution no.109(13) was in draft agenda but was not in final agenda and that is not the plea of the RCDF. The minutes referred above discloses that upto the level of the Managing Director, it was decided to include the issue of increase in age of superannuation in the agenda for the meeting 109 of the Board of Directors. The explanation given by the learned counsel for the respondents in support of existence of two minutes of the meeting dated 15.9.2008 clearly shows that the explanation is nothing but out come of an afterthought and that too, is contrary to the record. If the copy of the minutes produced by the petitioners was of draft resolution then how a draft resolution could have 44 been prepared including the issues which were never placed before the Board of Directors? Further, none of the Director or Managing Director of RCDF who was holding post at that time has submitted their affidavits to state that resolution No.109 was not put for consideration of Board of Directors on 15.9.2009. The copy of the resolution no.109(13) was given by none else than by the competent authority of the respondent- the RCDF to the petitioners and the note-sheet suggests that before the meeting of the Board of Directors, a decision was taken by the Managing Director of the RCDF to place the issue of increase in age of superannuation before the Board of Directors.
In the original minutes book of RCDF, the minutes of the meeting No.107 at page 260(printed) in the Register have been signed by the then Managing Director Shri Madhukar Gupta and the Chairman of RCDF Om Prakash Punia. Then at page 261(printed)(in hand-written NO.131), there is note stating that one resolution No.108(1) about share money rate amendment was sent as per bye-law No.32, in circulation for approval but that has not received after approval. Therefore, same resolution be placed in the Board of Director's meeting NO.109 as resolution No.109 (3). This resolution is incorporated in the minutes of the Board of Directors' meeting dated 15.9.2008. At printed page 262, there is a note that circular resolution No.108(A) 45 (1) which was in the light of the declaration of the Hon'ble Chief Minister for increase in the age of superannuation of employees of RCDF from 58 years to 60 years was sent as circulation agenda resolution on 27.8.2008 to the members of the Board of Directors. This resolution has not received after signature of the Chairman, RCDF, Jaipur, Registrar, Cooperative Society, Rajasthan Jaipur, the Chairmen of Dairy Unions, Sikar, Pali, Raniwara, Tonk, Sawaimadhopur, Udaipur, Bikaner and Hanumangarh. Then it is written that, therefore, that decision has not been taken by circulation. Hence this resolution was placed in the Board of Directors meeting NO.109 which was convened on 15.9.2008 and therein this was put as agenda No.109 (13). Then from page 263 (in hand-written No.132), the minutes have been recorded of the Board of Directors dated 15.9.2008. As already stated that resolution NO.108(1) was sent for approval in circulation but that was not approved and, therefore, was put in the Board of Directors' meeting as resolution NO.109(3) as per note at page 261 and to the same effect, a note is at page 262 wherein it is clearly mentioned that the resolution for increase of age of superannuation of the employees from 58 years to 60 years was sent in circulation on 27.8.2008 and has not been received with the signatures of constituent members, therefore, this resolution was placed in the meeting of 46 Board of Directors' meeting No.109 which was convened on 15.9.2008 and the resolution was numbered as No.109(13). In original minutes of the meeting No.110 dated 23.10.2010, there is no reference of minutes No.109(13) dated 15.9.2008. The Board of Directors were, therefore, not appraised about the minutes NO.109(13) already approved by the Managing Director of RCDF nor the Board of Directors were appraised about the conflicting views of the Managing Director and Chairman of the RCDF. The Chairman himself had no right to withdraw the minutes No.109(13) or approval to these minutes by the Managing Director, RCDF. Once the Chairman himself ordered for placing the item NO.11 to 13 of the meeting No.109 before the next Board's meeting, why they were not placed in the next meeting No.110 is not only serious question but it appears that the minutes of meeting No.110 dated 23.10.2008 were also drawn to suppress the resolution NO.109(13). In the resolution No.110(8) of the meeting dated 23.10.2008 only it has been recorded that all the elected members in the Board of Directors were against the increase in the age of superannuation of the employees, whereas the stand of the respondents before this Court is that neither the Board of Directors of the RCDF till that time considered the issue of increase in age of superannuation of the employees from 58 years to 60 years 47 and no meeting was convened for considering this issue. The RCDF in its reply, did not disclose these facts nor alleged that the copy of the minutes produced by the petitioners is forged or it was a draft resolution. Strangely the plea that minutes No.109(13) was draft resolution or forged is taken by other societies and private party. Coupled with above facts, the respondent-societies and members of the Board of Directors failed to show why the employees were not retired on attaining age of 58 years for almost two months, as the employees started retiring from 30.8.2008. In resolution 110(8) dated 23.10.2008, ultimately it has been stated that on the request of the Registrar, Cooperative Societies, the resolution No.110(8) is deferred. Above resolution No.110(8) dated 23.10.2008 supports the contention of the learned counsel Shri P.P.Choudhary that there was serious dispute between the elected members and the government representatives in the Board of Directors (and the employees were crushed in this dispute) and till the same Managing Director remained on the post, the order not to retire the employees of the cooperative societies was obeyed and his decision was obeyed for the obvious reason that the order dated 19.9.2008 was not withdrawn even by resolution No.110(8) of the Board of Directors' meeting dated 23.10.2008 wherein even after recording the plea of elected members of the Board of 48 Directors that they were not agreeable for increase in the age of superannuation from 58 years to 60 years, decision on resolution was deferred only and there is no resolution even to withdraw order dated 19.9.2008 till today.
At this juncture, it will be relevant to mention here that in the original minutes dated 15.9.2008 shown to this Court by the learned counsel appearing on behalf of RCDF, there is no signature of the then Managing Director of the RCDF and said minutes have been signed by the new Managing Director Shri Sameer Singh Chandel who was not the Managing Director of the RCDF on 15.9.2008 and, therefore, had no personal knowledge about what was resolved in the meeting dated 15.9.2008 and the Chairman was against the resolution No.109(13). Whereas the copy provided to the petitioner under the provisions of the Right to Information Act, the signature of the then Managing Director, RCDF Madhukar Gupta is on the minutes. The respondent-the RCDF failed to produce or deliberately did not disclose that resolution for increase in age of superannuation was sent in circulation. Once a resolution was sent for approval of members by circulation it could not have been buried in the manner it has been shown. In totality, it appears that the minutes of the Board of Directors dated 15.9.2008 containing total 13 resolutions were passed and drawn and placed before the Managing 49 Director, RCDF who approved and also placed before the Chairman, RCDF who did not agree to it, therefore, were not recorded in the minutes book which could not have been done and only procedure was to record the minutes as it is and could have been placed before the Board of Directors, who may have taken a different decision but unless a different decision is taken, the minutes passed have valid force of resolution. The then Managing Director demitted the office which gave opportunity to the Chairman and subsequent Managing Director to draw the minutes as they wished for the Board of Directors meeting dated 15.9.2008 and presented the record before this Court, as original minutes of the RCDF. The Registrar, Cooperative Societies also failed to exercise his powers and was not concerned with, whether the age of superannuation of the employees of the societies is to be increased or not and whether allowing the employees to work beyond the age of 58 years, will be in the interest of society or not ?
Much has been said about the authority of the Managing Director of the RCDF and it has been vehemently argued that the Managing Director, RCDF had no authority to issue any order like the orders dated 30.8.2008 and 15.9.2008 and 19.9.2008 increasing the age of superannuation of the employees of these societies. This argument has been advanced without noticing the 50 Government Notification No. F/12(15)/Co.op/2000/Part-II dated 10-11.6.2003, by which all the powers of the Registrar except under Sections 6,10 to 14, 54, 57,58, 61, 65, 66, 104 and 107 which are not relevant for exercising power to prescribe age of superannuation of employees, for all dairys under his jurisdiction has been given to him. By virtue of this Notification, the Managing Director, RCDF had right to pass order under sub-rule (1) of Rule 34 of the Rules of 2003. If the Managing Director has passed the above order without mentioning the relevant rule and source of power can be found from the Act or under Rules, the order cannot be said to be illegal of in excess of power. Therefore, order dated 15.9.2008 issued by the Managing Director, RCDF directing not to retire the employees of the RCDF as well as of other Milk Unions (respondent- Cooperative Societies) on attaining the age of superannuation of 58 years till 30.8.2008 and then upto 31.9.2008 as well as after resolution No.109(13) dated 15.9.2008 by order dated 19.9.2008, the Managing Director RCDF was authorised firstly by Notification dated 10- 11.6.2003 and further by the Board of Directors who resolved the Managing Director, RCDF to pass appropriate order for increase in the age of superannuation of the employees of the Cooperative Societies. Then on 17.9.2008, the Registrar, Cooperative Societies, by exercising powers 51 under sub-rule (1) of rule 39 (wrongly mentioned as sub- rule (4) of Rule 39 in the order dated 17.9.2008) of the Rules of 2003, authorised the Cooperative Societies themselves to take a decision for increase in the age of superannuation from 58 years to 60 years. The Managing Director of the Cooperative Societies, who in view of Notification dated 10-11.2003, already had authority to exercise power under the Act of 2001 and particularly under Rule 34(1) of the Rules of 2003.
There is challenge to the order of the Government dated 30.8.2009(Annex.13) which was issued by the Department of Animal Husbandry of the Government of Rajasthan, addressed to the Managing Director, RCDF, Jaipur, wherein after giving reference to the order dated 17.7.2009, it has been directed that the order of the Managing Director, RCDF dated 19.8.2008 be withdrawn forthwith and further it was directed that in those Cooperative Societies and in the RCDF, where there are profit in last three years continuously and the strength of the employees is not beyond the sanctioned strength, for those, the societies including RCDF, a resolution for increase in age of superannuation from 58 years to 60 years be passed in the light of the order of the Registrar dated 17.9.2008. It has not been shown by the authority concerned under which provision of law, the Secretary to 52 the Government of Animal Husbandry Department could have issued a positive direction to withdraw the order passed by the RCDF dated 19.9.2008. It is strange that at one side, the counsels for the Cooperative Societies are stating that they are autonomous bodies and the final authority vests in them/in their general body by virtue of Section 24 of the Act of 2001, yet they want to obey the order of the Government directing them to withdraw the order passed by the Managing Director, RCDF. This order of the Government dated 31.8.2009 is not a direction to reconsider the matter afresh for any reason but is straightway direction to the Cooperative Societies to withdraw the order dated 19.9.2008, which order, in view of the finding recorded above, was issued by the Managing Director of the RCDF in consonance with the decision of the Board of Directors of the RCDF as well as who has been vested with the powers under the various provisions of the Cooperative Societies Act, 2001 by the Government Notification dated 10-11.6.2003. In the cooperative movement, some guidelines and valuable suggestions can be given by the Government to the Cooperative Societies, leaving them to decide on the basis of the facts for their societies and some powers have been given to the Registrar, Cooperative Societies over the functioning of the Cooperative Societies, but exercising of the the power by 53 the Government in the manner in which it has been done by order dated 31.8.2009, has no sanction of law. The order dated 31.8.2009 also is a non-speaking order so far as it directed to withdraw the order of the Managing Director dated 19.9.2008. There is no reference of any of the resolution of the Board of Directors, either dated 15.9.2008 and how the said authority, the Deputy Secretary to the Government of Rajasthan, could have passed the order directing for withdrawal of the order dated 19.9.2008? It is also not clear from the order dated 31.8.2009 that what compelled the said authority to issue order after almost one year directing withdrawal of the order dated 19.9.2008. The order dated 31.8.2009 is, therefore, wholly without jurisdiction, as it has no sanction of law under the Rajasthan Cooperative Societies Act nor has been passed by the competent authority, like the Registrar, Cooperative Societies and further is illegal because it is without application of mind, unreasoned and non-speaking order and, therefore, was not binding upon the Apex Society or other Cooperative Societies nor upon the Managing Director of the RCDF and the order of the Managing Director dated 31.8.2009 passed in pursuance of the said order dated 31.8.2009 to withdraw the earlier order dated 19.9.2008 is also absolutely illegal, as has been passed following an absolutely illegal order, ignoring the resolution of the Board 54 of Directors, RCDF. It will be worthwhile to mention here that the order dated 31.8.2009 has been passed during pendency of the writ petitions, already preferred by the petitioners at the Principal Seat of the Rajasthan High Court at Jodhpur and the Bench at Jaipur.
The petitioners, particularly in SBC Writ Petition NO.8626/09, have placed on record voluminous documentary evidence to show that time and again, several orders were issued by the State Government for implementation of the dairy programme in the State of Rajasthan through the respondent-Apex Society and in turn through dairys cooperative societies. One of the orders issued by the RCDF dated 17-20.11.2003 reveals that the State Government passed the order P-12(27)/SHA/97 dated 16.1.1998 informing that all societies who are getting aid through apex society, their employees' strength, salary and wages shall be modified only after obtaining prior sanction of the apex society. In this letter dated 17-20.11.2003 (Annx.23), it has been conveyed to all the societies that they shall not ignore the directions issued by the apex society in relation to creation of new posts, change in cadre, creation of new cadre, change in name of post and for promotion. Not only this, even in Notification dated 15.10.2003, some powers of Registrar,Cooperative Society have been given to the Managing Director of the RCDF and 55 that Notification was issued under the Rajasthan Cooperative Societies Act, 2001. The authority of the Managing Director of the RCDF in such circumstances, cannot be said to be altogether only an authority of the Managing Director of the RCDF and I do not find any force in the submission of the learned counsel for the respondents that the RCDF-the apex society had no power or jurisdiction to issue any direction to its affiliated societies, like respondents. I do not find any force in the submission of the learned counsel for the respondents that if any authority of the RCDF-apex society is accepted over the authority of its affiliated societies then that will be against the autonomy of the affiliated societies because of the plain and simple reason that the societies themselves created the Apex Society not only through their representatives who were signatories to the Registration of the apex society but the societies themselves accepted expressly, more than by implication, that they will abide by the orders and directions issued by the apex society. The apex society has not given status of supreme body over the affiliated societies as such but there is no bar in Rajasthan Cooperative Societies Act, 2001 or in the law which was in force before the Act of 2001 for taking a decision by the societies to work together and to take as far as possible uniform service conditions for employees. In present case, we have to see that all the 56 societies before this Court are the member societies in the apex society, RCDF and are having government money involved therein and the societies are helping the government in implementing its policy for increase in milk production in the State of Rajasthan and its distribution in fair way for the benefit of public. Therefore, by nature and constitution of the societies and their working, if they decided to have uniform service conditions as far as possible, then it is not a case of subordination of societies to the apex society. The issue as raised by the respondents and projected is that if any decision of the apex society shall be held binding upon the other cooperative societies then that will touch the autonomy of the society, is projected out of proportion. The issue here in these matters is only whether the age of superannuation of the employees of the cooperative societies(respondents) should be 58 years or 60 years and as per the stand taken by the respondent and as per the decision of this Court delivered in the case of B.N.K. Sahkari Wholesale Bhandar Limited and in the case of Mohan Lal (supra), the Registrar Cooperative Societies himself, without help of these societies, can increase the age of superannuation from 58 years to 60 years, then can the society say that this will affect their autonomy? The answer will be in negative. Therefore, in the facts of the case, the petitioners succeed in placing on record the 57 material sufficient to prove that the decision of the RCDF is required to be followed by the other societies, as they agreed to follow the decision of the apex society and obeyed the apex society's decision in past and continued to do so and no instance has been cited where the affiliated societies refused to accept the directions of the apex society. More so, particularly in this very case, order not to retire the employees of the cooperative societies issued by the Managing Director of the RCDF was obeyed by all the societies, as none of the employees of any of the societies, apex or affiliated, were made to retire on attaining age of superannuation in the months of August, 2008 and September, 2008 because of the orders passed by the Managing Director of the RCDF, the apex society dated 13.8.2008 and 15.9.2008. As already observed that the affiliated societies took the benefit of the situation and after the change of the Managing Director wants to back out from their own decision by which they agreed to follow the decision and the instructions issued by the RCDF since formation of RCDF.
At this place, it will be relevant to refer the communication of the Registrar,Cooperative Societies dated 23.10.2008 placed on record by respondent Ram Chandra in SBC Writ Petition No8626/09 whereby the Registrar, Cooperative Societies, observed that as per rule 39(4) of 58 the Rajasthan Cooperative Societies Rules, 2003, all powers vest in the Registrar, Cooperative Societies to prescribe the cooperative societies employees' service conditions. He further stated that all the dairy's(cooperative societies- respondents) are independent units and some of them are running in losses, therefore, the order issued by the RCDF dated 13.8.2008 and 15.9.2008 are against the provisions of rule 39(4) of the Rules of 2003 and then it has been conveyed that the RCDF should proceed to take a decision in the light of the order dated 17.9.2008 (by which the Registrar, Cooperative Societies himself authorised the cooperative societies to take a decision about the age of superannuation of the employees). The communication dated 23.9.2008(Annx.R.9/7) conveys two things that the Registrar, Cooperative Societies has power to prescribe the service conditions of the employees as well as by his order dated 17.9.2008, he directed the cooperative societies to comply with the order dated 17.9.2008 obviously for or against the increase of age of superannuation. Firstly, in spite of this direction of the Registrar, the stand of the cooperative societies, as stated above, was that they were not directed to take a decision in pursuance of the order dated 17.9.2008. The said stand is contrary to the respondent's own document Annex.R.9/7 dated 23.9.2008 wherein there is specific direction to the Societies to take 59 decision. The Registrar,Cooperative Societies himself authorised the Board of Directors to take a decision by order dated 17.9.2008, yet stated that that power vests only in him. Be it as it may be, in the light of the order of the Registrar,Cooperative Societies dated 17.9.2008, which is not under challenge and its implementation has been sought by the Registrar, Cooperative Societies himself and the petitioners also wants benefit under this order dated 17.9.2008 then the Cooperative Societies could not have taken stand that they were not supposed to even convene the meeting to consider the issue of increase in age of superannuation even when the facts referred above clearly reveal that on insistence of the employees of the cooperative societies, the State Government took a decision to increase the age of superannuation for various organisations, bodies and the Registrar, Cooperative Societies, obviously following the same policy, permitted the societies to take a decision about the increase in age of superannuation of the employees. How this important issue could have been left for ever resulting into immediate retirement of number of employees.
So far as financial condition of the RCDF is concerned, it is not in dispute that it was running in profit and also had some accumulated loss but for that accumulated loss the RCDF itself observed that that loss will be imped out in one 60 or two years . As per Annex. 9, the profit of the RCDF was as under:-
Financial Year Profit Amount.
2005-2006 Rs. 377 Lakhs
2006-2007 Rs. 700 lakhs
2007-2008 Rs. 843 lakhs
The accumulated loss as on 31.3.2008 was Rs. 883 lakhs, whereas the reserved and surplus funds as on 31.3.2008 was Rs.7703 lakhs. It has been submitted by the learned counsel for the petitioners that actual trade is being done by the affiliated cooperative societies and the apex society is getting the share in profit only, irrespective of loss to its member societies. The working bodies may be in some losses but the over all welfare of the employees have been ignored by not giving relief to the employees of increase in age of superannuation. It has been given to all government servant and the employees of almost all bodies. Be it as it may be, the facts reveal that the employees remained the weaker section, though for their claim, obtained orders from the Registrar, which must have been in consonance with the Government policy but frustrated by the vested interest and in infight of management. The mismanagement in the working of the cooperative societies (dairys) may have caused loss to the government also, which is only due to mismanagement in working of the societies and it will be unjust to have different age of 61 superannuation for the apex body and for its affiliated societies who in fact doing the work for earning for not for its own but earning the profit for the Apex Society. At this juncture, the argument of learned counsel Shri M.R. Singhvi requires to be noted that if losses to the Societies are because of mismanagement on the part of the management and because of giving employment to number of persons beyond the sanctioned strength then why the regularly appointed employees be made to suffer.
The petitioners also challenged the order of the Hon'ble Minister, Cooperative Societies dated 29.7.2009 whereby one ex parte interim order staying the order of the Managing Director, RCDF dated 19.9.2008 as well as the order dated 22.9.2008 passed by the Managing Director of Ajmer Dugdha Utpadak Sahakari Sangh Limited, Ajmer have been stayed upto 29.9.2009. It is submitted that this order cannot be challenged in the writ petitions straightway without first before seeking its withdrawal or setting aside from the said authority itself. It is also submitted that since the order dated 19.9.2008 was stayed by the Hon'ble Minster in the revision petition preferred by Ram Chandra Choudhary, one of the respondent, who has put in appearance as applicant, therefore, his counsel argued the matter on merit also. Therefore, today there is no order of even Managing Director, RCDF increasing the age of 62 superannuation from 58 years to 60 years. It is not in dispute that neither the writ petitioners individually nor their Unions are parties in the said writ petition. The order was passed ex parte against the RCDF. The order certainly affects the rights of the petitioners employees as well as their representatives Unions. The order was passed on 29.7.2009 and it was made operative till 29.9.2009. It is not brought to the notice of this Court whether this order is in force till today or not. Be it as it may be, the petitioners, as such, cannot seek any relief from the Hon'ble Minister unless they are permitted to become parties in the revision petition preferred by said Ram Chandra and in the facts of this case, I do not find any reason for refusing to entertain the writ petitions of the petitioner to find out the effect as well as validity of the order dated 29.7.2009, obtained by one person against one party RCDF. The said order dated 29.7.2009 is an interim order only, is neither binding upon the writ petitioners nor is binding order upon this Court. In view of the detail reasons given above in the judgment and the final decision of the writ petitions, the interim order dated 29.7.2009 cannot be given precedence over this Court's final judgment and the petitioners cannot be directed to first approach in revisional jurisdictional to get order set aside which was passed against the employees without giving opportunity of hearing to the petitioner and 63 wherein even petitioners have not been impleaded as party, therefore, there will be no notice to the petitioner. By such act, respondent Ram Chandra cannot prevent the petitioners from seeking relief after making out a case for the relief in this petition. Not only this, even if the revision petition of said Ram Chandra is allowed against only one party the RCDF even then the petitioner can challenge that order straightway by filing writ petition.
Serious preliminary objections have been raised by the counsel for the respondents. It has been submitted that the petitioners deliberately did not disclose the complete facts and misled this court and obtained the interim relief, therefore, the writ petitions of the petitioners deserve to be dismissed on this ground alone. The writ petitions of the petitioners deserve to be dismissed on the ground of misjoinder of parties as well as on the ground that the employees of the dairys unions of different districts over which principal seat of the Rajasthan High Court has no jurisdiction, have preferred the joint writ petitions. It is also submitted that at Jaipur Bench of the Rajasthan High Court, some of the petitioners preferred writ petitions and the Jaipur Bench of the High Court on 26.5.2009 dismissed the stay petition, wherein these very petitioners sought interim relief to continue in service beyond the age of 58 years and suppressing these material facts, they approached this 64 Court and by misleading this Court, obtained the interim order in their favour. It is also submitted that even if order of the Registrar, Cooperative Societies dated 17.9.2008 requires that a decision is to be taken by the Board of Directors of the Cooperative Societies, then the petitioners have not sought any direction against the cooperative societies that their Board of Directors should consider and take a decision in the light of the order of the Registrar, Cooperative Societies dated 17.9.2008 and the petitioners proceeded on assumption by submitting order passed by the Managing Director of the RCDF dated 19.9.2008, that their age of superannuation already stands increased.
To meet with the preliminary objections, the learned counsel for the petitioner submitted that the order of the Managing Director, RCDF has been passed for all employees of all dairys in Rajasthan and affiliated to RCDF, therefore, there is complete territorial jurisdiction of Principal Seat of the High Court and when common question of law and facts are involved then the question of jurisdiction cannot come in the way of the petitioners and they can maintain the writ petitions at principal seat of the High Court, irrespective of the fact that their dairys are situated in the territorial jurisdiction of the Bench of the Rajasthan High Court. It is also submitted that in the writ petition wherein stay petition was dismissed by the Jaipur Bench of the High Court vide 65 order dated 26.5.2009, the orders which are impugned in these writ petitions, are not under challenge. The petitioners, in support of their plea, drew my attention to the copy of the Writ Petition No.2576/09(Annex. A.1) submitted by one of the party-respondent, to show that in said writ petition letter/dated 27.1.2009 was challenged and the order dated 19.9.2008 was not for consideration in the said writ petition. It is also submitted that the plea has been raised to prejudice this Court only and even respondents themselves were knowing it well that the rejection of the application for interim relief by the Jaipur Bench of the Rajasthan High Court vide order dated 26.5.2009, has no bearing as that order was interim order as well as even after order dated 26.5.2009, none of the employee of the RCDF or other society was made to retire and that was because of the reason that the respondents were knowing it well that the petitioners were entitled to continue even after the age of 58 years. The learned counsel for the petitioners also submitted that the petitioners in S.B.Civil Writ Petition No.8626/09 disclosed the fact of filing of S.B.,Civil Writ Petition No.6616/2007 by respondent Ram Chandra in para 28 and also about the revision preferred by same Ram Chandra before the Hon'ble Minister and the order passed by the Hon'ble Minister in the revision petition. The petitioners at page 34 clearly stated that the writ petitions 66 were also filed for and on behalf of the employees and interim order was vacated and thereafter stated that in spite of dismissal of the stay petition, the employees are working with the respondents-societies.
I considered the submissions of the learned counsel for the parties on these preliminary objections and I do not find any force in the submission of the learned counsel for the petitioners that the writ petitioners, who are employees of the societies situated within the territorial jurisdiction of the Jaipur Bench of the Rajasthan High Court and preferred writ petitions there , could have for any valid reason, joined the hands with the petitioners whose offices are situated within the territorial jurisdiction of the principal seat of the Rajasthan High Court at Jodhpur. Therefore, the writ petitions on behalf of the employees' Unions societies which are not within the districts under the territorial jurisdiction of the Principal Seat of High Court, are not maintainable and are liable to be dismissed and in the same way the writ petitions of the employees of dairys' (Cooperative Societies) which are not situated within the districts under Principal Seat of High Court, are also liable to be dismissed. The other petitioners have disclosed the fact that in their writ petitions, interim order was vacated by the High Court as well as filing of the writ petition by respondent-Ram Chandra and also placed on record the 67 copy of the interim order passed in the revision petition filed by Ram Chandra. Therefore, in totality of the facts of the case, this Court is not inclined to dismiss the writ petitions of the petitioners on the ground of suppression of facts. However, the petitioners were supposed to give detail in their writ petitions, the circumstances in which the present writ petitions have been filed, but that is not very much material fact in view of the decision of the Supreme Court given in S.J.S. Business Enterprises(P) Ltd. vs. State of Bihar & others ((2004) 7 SCC 166) and the Division Bench judgment of this Court given in M/s Birla Cement Works and another v. State of Rajasthan & another ( AIR 2000 Rajasthan 251).
It will be appropriate to take note of the facts about the writ petitions filed at Jaipur Bench of this High Court. The S.B.Civil Writ Petition No.2576/09- Rajasthan Rajya Dairy Karmchari Mahasangh & ors. vs. Rajasthan Cooperative Dairy Federation & ors., S.B.Civil Writ Petition No.13537/2008-Pradeep Kumar Saxena vs. Rajasthan Cooperative Dairy Federation & ors., S.B.Civil Writ Petition No.1910/2009-Umesh Mathur v. State of Raj. & ors., and S.B.Civil Writ Petition No.14258/08-Sailen Chatterjee vs Rajasthan Cooperative Dairy Federation & ors. were filed by the cooperative societies' employees union and by individual employee of the cooperative society, whereas counter writ 68 petition was filed by Ram Chandra Chaudhary , which is S.B.Civil Writ Petition No.13122/08-Ramchandra Chaudhary & ors. vs. State of Raj. & ors. In those writ petitions, by order dated 26.5.2009, the Single Bench at Jaipur of this Court, vacated the interim order. The Coordinate Bench of this Court observed:-
"that I find that prima facie, it is not shown that Managing Director himself was competent to increase the age of retirement. He had merely allowed such of the employees, who were due to retire in August, 2008 to continue in service up to 15th September, 2009 without any salary subject to final decision and the Board of Directors has not approved of any such proposal. No irreparable loss would be caused to the petitioners because if eventually the writ petitions are allowed at the later stage, they can be compensated by award of back wages together with interest for the entire intervening period. (emphasis supplied) With these observations, the interim orders passed on 1.8.2008, 9.1.2009 and 6.3.2009 in S.B.Civil Writ Petitions Nos. 13537/2008, 12458/08 and 2576/09 were vacated. In another S.B.Civil Writ Petition No. 11446/09-L.D. Gupta & anr. vs. State of Raj. & ors., interim order for continuation of service beyond the age of 58 years was denied by order 69 dated 12.10.2009. Before the Coordinate Bench at Jaipur of this Court, it was submitted that there is no order/resolution of the federation(RCDF) which may allow the employees to continue up to the age of 60 years and as regards earlier order dated 19.9.2008, it has been withdrawn vide order dated 31.8.2009. It was brought to the notice of the Bench at Jaipur that in S.B.Civil Writ Petition NO.13537/08, 1910/09 and 14258/08, that the prayer for interim order was rejected by the coordinate Bench on 26.5.2009(at Jaipur Bench). They too have preferred S.B.Civil Writ Petition Nos.9102/09 and 8626/09 before the main seat at Jodhpur and by suppressing the material facts, succeeded in obtaining the interim order. The Coordinate Bench in the said Writ Petition No.11446/09 observed that "without expressing any opinion on merits at this stage and once the application for interim relief has been rejected by Coordinate Bench by a detail order dated 26.5.2009, it was expected from the parties to bring this fact to the notice of this Court at the stage when the interim stay order was passed at the Principal Seat, Jodhpur." Then the Coordinate Bench observed that since order dated 19.9.2008 continuing the service of the employees beyond 58 years has been withdrawn by order dated 31.8.2009 and its validity can be examined by the court at the stage of final hearing by permitting the petitioners to 70 continue up to the age of 60 years in the light of order dated 31.8.2009 will certainly grant them the final relief which the petitioners have prayed for in the instant petition. The court also noticed that only order of withdrawal of earlier order increasing age from 58 years to 60 years was before the court and there is no resolution contrary to the said order, therefore, the petitioners are not entitled to any interim relief and the said petition was dismissed. Then in S.B. Civil Writ Petition No.2576/09, an application was submitted by the petitioner seeking permission to withdraw the writ petition, but looking to the seriousness in the matter, that the petitioners approached the Bench of the High Court at Jaipur and tried to obtain the interim order wherein they failed, then they filed the writ petition before the Principal Seat of the High Court at Jodhpur and obtained the interim order, therefore, the withdrawal of the writ petition was denied.
However, the larger question is that whether on this ground the persons who have joined as petitioners with those persons, whether their writ petitions also deserve to be dismissed. The normal rule is that if the petitioners decided to sail together they are bound to sink together, but here is some material facts, which will be relevant which requires deviation from said proposition. The court found from the facts of the case that the grievance of those writ 71 petitioners, who did not prefer any writ petition on earlier occasion, are made to suffer because of the only infighting in the management of their societies. The employees persuaded the government to take a decision for increase in their age of superannuation. Hon'ble the Chief Minister in his 15th August speech assured for increase in the age of superannuation of the various organisations, bodies and corporations. The Registrar, Cooperative Societies who is competent to pass appropriate order by exercising statutory power passed the order permitting to the Board of Directors to take a decision if it is in the interest of the society to increase the age of superannuation. The facts referred above reveal that the complete agenda was prepared and resolution was circulated among the members of the Board of Directors on 25.8.2008. This resolution even if was not signed by the requisite number of members or all members of the Board of Directors of the RCDF even then as per the procedure, it could have been placed in the meeting of the Board of Directors. The Managing Director of the RCDF ordered for putting up it in the meeting of the Board of Directors. That order was never cancelled. The original minutes have been shown to this Court clearly proves that a note was recorded in the minutes book that this resolution for increase in the age of superannuation was in fact placed in the meeting as item NO.109(13). The note-sheets 72 referred above also clearly suggest that after the meeting of the Board of Directors, minutes were drawn and were placed before the Managing Director, who approved it. The respondent RCDF deliberately suppressed this important material fact that the resolution was in fact prepared and was sent in circulation for signatures of the members of the Board of Directors. The minutes recorded in the minutes book of meeting No.109 clearly show that those minutes were recorded, not in time nor they are the correct minutes. It is not the case of the RCDF that it was decided not to put a resolution in the Board of Directors' meeting dated 15.9.2008 which was already sent in circulation for passing, was ever withdrawn. The RCDF's contention as well as contention of the other societies and private respondent Ram Chandra Choudhary is absolutely false statement of fact that the resolution No.109(13) was never prepared firstly, then it is forged, then improvement of other societies and private respondents that the copy of the resolution provided by the petitioners was only draft resolution, are the false statements of facts, which is even not supported by the RCDF and is contrary to the minutes even as recorded in the original minutes book. It was projected that the Managing Director had no authority to issue such order as he has issued for increasing the age of superannuation, whereas the resolution, copy of which has been provided by 73 the petitioner, clearly shows that his order was in consonance with the resolution and before and after that it was followed by not by the RCDF alone but also by all the Cooperative Societies affiliated to the Apex Society. If such conduct of the respondent will be ignored then it will result into injustice for which the courts are not meant. In a case where the conduct of the petitioner dis-entitles him for any relief, the maximum punishment can be denial of the total relief as well as imposing of exemplary cost, but when conduct of the respondent is glaring, then he can be saddled with cost only. Be it as it may be. The Coordinate Bench of the Rajasthan High Court at Jaipur also, while vacating the interim order has observed that the issue can be decided finally then only the petitioners can get the relief. The completes facts which are before this Court, obviously, were not before the Jaipur Bench , but that is not material for the purpose of deciding the writ petitions finally on merit on the basis of complete material. Interim orders are not decision of final or even of persuasive nature and it so more when at the time of the passing interim order, important material was not before the court. Therefore, this Court is of the view that it will be injustice to the other petitioners, if their writ petitions are dismissed on the ground that they joined with the persons who already preferred writ petitions at Jaipur Bench. The writ 74 petitioners, who have already availed the remedy at Jaipur Bench and the writ petitioners, who are falling in the jurisdiction of the Jaipur Bench, they are not entitled to any relief and, therefore, their writ petitions, if joint, are dismissed separately without dismissing the writ petitions of the co-petitioners.
In totality, it is held that the Registrar, Cooperative Societies had jurisdiction to issue order dated 17.9.2008. The Managing Director of the RCDF was authorised to pass appropriate order for increase in the age of superannuation till the appropriate orders could have been received by the Government and that order was obeyed by the RCDF and its affiliated other societies. By resolution dated 15.9.2008, the Managing Director, RCDF was authorised to pass appropriate order on receipt of orders from the Government. On 19.9.2008, i.e., after order dated 17.9.2008 passed by the Registrar, Cooperative Societies. The Managing Director, by virtue of resolution NO.109(13) dated 15.9.2008 issued the order for increase in the age of superannuation. The Registrar, Cooperative Societies issued order dated 22.9.2008 without noticing the resolution dated 15.9.2008 which might have not been conveyed to the Registrar, Cooperative Societies and the Registrar wrongly as well as illegally held the order dated 30.8.2008 and 15.9.2008 illegal under assumption that the RCDF has not 75 passed any resolution dated 15.9.2008 authorising the Managing Director of the RCDF to pass appropriate order after the Government order. The Registrar even vide order dated 23.9.2008, insisted for implementation of the order dated 17.9.2008 and, therefore, the respondent-affiliated societies' contention that they were not under obligation to even consider the order of the Registrar, Cooperative Societies dated 17.9.2008, is nothing but disowning the authority of the Registrar who has right to issue instructions for service matters of the employees under the provisions of the Cooperative Societies Act and the Rules framed thereunder. The resolution dated 15.9.2008, copy of which has been produced by the petitioners, was a valid resolution passed by the Board of Directors, though it has not been recorded in the minutes book of the RCDF but the minutes recorded in the minutes book of the RCDF dated 15.9.2008 are not the correct minutes as they have not included resolution NO.109(13) which was already a resolution in circulation since 25.8.2008. It is also held that all the Cooperative Societies affiliated to the Apex Society RCDF, though are not subordinate to the Apex Society, but at the same time, agreed and bound themselves by the instructions and directions issued by the RCDF and gave undertaking to obey the instructions, directions and decision of the RCDF. This position was accepted by the Cooperative 76 Societies since beginning and that too, from the time of formation of the RCDF. No instance has been shown by the respondents that, at any point of time, they refused to accept the decisions of the RCDF. The Managing Director of the RCDF has also been given power of the Registrar by the State Government by Notification dated 10-11.6.2003. The affiliated societies are beneficiaries because of the relationship with their Apex Society and, therefore, after taking benefit from that Apex Society, they have no right to disown the position of the Apex Society. The affiliated society are bound by their own written undertaking given to the RCDF containing clause No.12 that these societies shall adopt Model Service Rules, Cadre and Recruitment Rules, standing orders as suggested by the RCDF from time to time and shall not rescind/alter or modify these rules without the prior approval of the federation(RCDF).
The factual aspect has been considered in detail and the judgments relied upon by the learned counsel for the parties particularly relied upon by the learned counsel for the respondents, if examined then, according to the learned counsel for the respondents, in view of the judgment of the Hon'ble Supreme Court delivered in the case of K.Nagaraj and others v. State of Andhra Pradesh and another (AIR 1985 SC 551), it is absolute right of the employer to decide about the service conditions of the employees which 77 includes prescribing the date of retirement. There is no quarrel about this proposition and there cannot be in view of the Judgment of the Hon'ble Supreme Court, but here in this case, the petitioners are not claiming that the respondents be directed to increase the age of superannuation of the employees but they are seeking relief only to the effect that what the respondents intended and decided, that should be implemented, that is, the order dated 17.9.2008 be given effect to in its true spirit as well as Board of Directors' decision dated 15.9.2008, resolution NO.109(13) be obeyed. The authority of the Registrar has already been considered in the light of the judgment of this Court wherein it was held that the Registrar, Cooperative Societies can prescribe the age of superannuation. The order of the Registrar, Cooperative Societies dated 17.9.2008 is not under challenge as well as its validity is not under question. The Registrar directed the societies to take a decision and it will be worthwhile to mention here that the societies are running in profit and staff strength is less than the prescribed strength and it is in the interest of the society, then the age can be increased. Not only this but the societies which are not in profit and are running in losses, also has been given liberty to increase age of superannuation and even those societies whose staff strength is more than the sanctioned strength and are 78 running in loss, they have been given liberty to increase the age of superannuation. The accumulated loss is also not material and even after accumulated loss the societies were permitted to take a decision if it is in the interest of society to increase the age of the superannuation of the employees.
At this place, it will be relevant to refer here the judgment of this Court delivered in the case of Pawan Kumar vs. State of Raj. & ors (S.B.Civil Writ Petition No.6887/09) with connected writ petitions decided vide judgment dated 29.7.2009. That was a matter relating to the Cooperative Spinning Mills, w who formed Rajasthan State Cooperative Spinning and Ginning Mills Federation Ltd.. One of the order of the Registrar, Cooperative Societies dated 22.9.2008 was considered in that case which provided that the Society is in loss and there is accumulated loss then it may be examined that in how many years that accumulated loss can be wiped out and if there are more employees working against the sanctioned strength, then whether their contribution is useful or not. Therefore, neither the loss nor the accumulated loss itself can be a sole criteria for denying the increase in the age of superannuation of the employees and same view was taken in the case of Pawan Kumar(supra) that even accumulated loss itself is no ground for denial of relief to the employees. This Court also observed in the above judgment that when 79 the State has decided to give benefit to the employees of all Cooperative Societies on fulfillment of conditions, the employees become entitled to the benefit offered by the State upon fulfilling the conditions. At the cost of repetition, it may be stated that it is the benefit offered by the employer and not a demand without there being any offer and if there would not have been any offer of benefit, the employees may not have been entitled to the benefit as a matter of right in view of the judgment of the Hon'ble Supreme Court relied upon by the learned counsel for the respondents as held in the case of K. Nagaraj (supra).
In the S.B.Civil Writ Petition NO.8626/2009, an application has been submitted under Section 340,Cr.P.C. Seeking prosecution of the applicant Ram Chandra. The Chairman, Ajmer Dugdh Utpadak Sahakari Sangh Ltd,. Ajmer on the ground that he has submitted a wrong statement on oath that Annex.7 is not genuine document and there was no resolution passed in the meeting dated 15.9.2008 after resolution NO.109(10) and Annex.7 does not bear the signature of the Chairman and said minutes were never issued and published and they were simply drawn by the then Managing Director and the elected Board has refused to sign on it.
I considered the submissions of the learned counsel for the petitioners on this application.80
It appears that since the record of the RCDF itself was manipulated and, therefore, I do not find any reason to put any responsibility upon the said deponent Ram Chandra , as he might have bonafidely believed the minutes, copy of which has been shown or provided to him by the RCDF and those minutes were wrong, as held in the preceding paras. Therefore, the application under Section 340,Cr.P.C. is rejected.
Irrespective of the fate of the petitions, before parting with, I would like to appreciate that all the counsels appearing for the petitioners as well as for the respondents, Serveshri M.R. Singhvi, S.D. Vyas, Girish Joshi, J.S. Purohit, P.P. Choudhary, Rajesh Joshi, Anand Purohit, Additional Advocate General, K.K. Bhati, Ashvini Gehlot particularly put their best efforts to assist the Court to thrash out the detail facts during course of arguments with the help of relevant provisions of law for the Cooperative Societies.
In view of the above reasons, the S.B.Civil Writ Petitions No.6581/09, 7168/09, 8946/09, 8823/09, 8824/09, 9000/09, 9001/09, 9002/09, 9003/09, 9004/09, 9005/09, 9007/09, 9008/09, 9010/09, 9413/09, 9046/09 and 9471/09 are allowed. S.B.Civil Writ Petitions No.9104/09 is allowed qua petitioners no.1 and 2 and is dismissed qua petitioners no. 3 and 4. S.B.Civil Writ Petition No.8626/09 is allowed qua petitioners No.1 and 3 81 to 11 and is dismissed qua petitioner no.2 and all employees of the Ajmer Zila Dugdha Utpadak Sahakari Sangh Limited. S.B.Civil Writ Petition No.9102/09 is allowed qua the petitioner no.1 and is dismissed qua the petitioners no. 2 to 7 and it is held it is held that:-.
(1) the Managing Director of RCDF had power and authority to issue orders dated 30.8.2008, 15.9.2008 and 19.9.2008 to increase the age of superannuation by virtue of the Notification dated 10-
11.6.2003 and further by virtue of resolution NO.109 (13) of the Board of Directors' meeting dated 15.9.2008, (2) copy of the minutes of the meeting of the Board of Directors containing resolution No.109(13) produced by the petitioner was the correct copy of the resolution of Board of Directors meeting dated 15.9.2008 and it was duly circulated among the members of the Board of Directors on 25.8.2008. Then the decision was taken to put this resolution in the meeting of the Board of Directors No.109 dated 15.9.2008 and after deliberation, resolution No.109 (13) referred above was drawn and approved by the Managing Director, RCDF and non-incorporation of the minutes NO.109(13) in the original book of minutes cannot take away the force from the resolution of its 82 being carried, (3) the copy of the minutes of meeting NO.109 of the Board of Directors of RCDF produced by the respondents and recoding of the original minutes in the minutes book of the RCDF of meeting dated 15.9.2008 do not reflect the correct minutes, (4) The minutes No.109(13) dated 15.9.2008, for which the Chairman had his own reservation, was not put in the Board of Directors' meeting dated 23.10.2008 and, therefore, the Minutes NO.109(13) were deliberately withheld which may be due to the apprehension that those minutes may not be withdrawn in the meeting of the Board of Directors, (5) In the meeting NO.110 dated 23.10.2008, the Board of Directors did not resolve to withdraw any of the decisions made, either by the Managing Director, RCDF in relation to the increase in the age of superannuation nor the Minutes No.109(13) were rescinded, altered, modified or cancelled by the Board of Directors of the RCDF.
(6) The order of the Registrar dated 22.9.2008 declaring that the order of the Managing Director dated 30.8.2008 and 15.9.2008 were contrary to rule 39(4)(or under sub-rule (1) of Rule 39) of the Rajasthan Cooperative Societies Rules, 2003 is illegal 83 and has been passed ignoring all relevant facts as well as the Notification of the State Government dated 10- 11.6.2003 and without noticing the decision of the Board of Directors of RCDF, (7) The managing Director of RCDF has been authorised by the State Government by exercising powers under the Rajasthan Cooperative Societies Act, 2001 to exercise powers of the Registrar which is in addition to the powers vested with the Registrar (and this notification is neither under challenge nor has been withdrawn by the State Government). By this Notification dated 10-11.6.2003, the power of Managing Director, RCDF extends to all dairys (Cooperative Societies) under his jurisdiction for the purpose of exercise of powers under the Act of 2001 except for the Sections 6, 10 to 14, 54,57,58, 61,65,66, 104 and 107.
(8) The order of the Deputy Secretary, Government of Rajasthan, Animal Husbandry, Jaipur dated 31.8.2009 is declared illegal and consequently, the order of the RCDF dated 31.8.2009 withdrawing the order of the Managing Director, RCDF dated 19.9.2008 based on Government's order dated 31.8.2009 is also illegal.
(9) The order passed by the Hon'ble Minister in 84 the revision petition of Ram Chandra Chaudhary sought against only RCDF (without impleading persons directly affected by the order dated 29.7.2009) is no bar for the writ petitioners to seek relief under Article 226 of the Constitution of India.
(10) Any decision taken by any respondent-
Cooperative Societies, in conflict with the decision of the RCDF and resolution No.109(13) dated 15.9.2008 is declared illegal and set aside.
(11) The orders of termination of services of the employees of the respondent-societies on attaining the age of superannuation at the age of 58 years is declared illegal and the writ petitions of those writ petitioners, whose writ petitions have not been rejected on the grounds mentioned in the judgment, are allowed and they shall be entitled to continue in service upto the age of 60 years with all consequential benefits. The employees-writ petitioners only who have been retired by the impugned orders shall also be entitled to all consequential benefits.
(12) The application filed under Section 340,Cr.P.C. In S.B.Civil Writ Petition No.8626/09 is dismissed.
( PRAKASH TATIA), J.
mlt.