Rajasthan High Court - Jodhpur
Umaid Singh vs State Of Raj. & Ors on 14 November, 2013
Bench: Amitava Roy, P.K.Lohra
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
D.B.CIVIL SPECIAL APPEAL NO.1092/2013
(Umaid Singh vs. State of Rajasthan)
DATE OF ORDER: 14.11.2013
HON'BLE THE CHIEF JUSTICE MR.AMITAVA ROY
HON'BLE MR.JUSTICE P.K.LOHRA
Mr.M.S.Purohit ) Mr.B.S.Bhalasria ) for the appellant.
Mr.D.K.Parihar ) Mr.Vikas Bijasnia ) Mr.K.K.Bhati ) for the respondents.
The instant appeal witnesses a challenge to the order dated 26.9.2013 passed in the writ proceeding whereby interim relief in essence of permitting the appellant/writ petitioner to continue in service with the respondent No.3 i.e. Bikaner Dugdh Utpadak Sahkari Sangh Limited (for short hereinafter referred-to as "the respondent Union") beyond the age of 58 years pending final adjudication, has been declined.
We have heard Mr.M.S.Purohit, learned counsel for the appellant and Mr.D.K.Parihar, learned counsel appearing on behalf of the respondents.
The facts in brief would be unavoidably essential to answer the present debate. The appellant/writ petitioner is an employee with the respondent Union and his service conditions are governed by the Uttari Rajasthan Dugdh Utpadak Sahakari 2 Sangh Limited, Jodhpur Employees (Appointment, Pay & Allowances) Regulations, 1992 (for short hereinafter referred-to as "the Regulations") wherein, in terms of Regulation 19 of the Regulations, 1992, the age of retirement of the employees of the respondent Sangh is 58 years. Pursuant to the decision of the State Government to enhance the age of superannuation of the employees of Corporations/Boards/Companies under the purview of Bureau of Public Enterprises from 58 years to 60 years vide order dated 26.8.2008, the Rajasthan Cooperative Dairy Federation Limited (for short hereinafter referred to as "the RCDF") vide its order dated 19.9.2008 also followed suit. The Managing Director, RCDF was directed by the State Government by its communication dated 31.8.2009 to withdraw his order dated 19.9.2008 and instead, take a decision in conformity with the order dated 17.9.2008 issued by the Registrar, Cooperative Societies. Consequently, the respondent Sangh reduced the age of superannuation of its employees from 60 years to 58 years.
A spate of litigation followed and eventually, the matter reached the Apex Court, the issue having been taken to it by the RCDF, Ajmer Dugdh Utpadak Sahkari Sangh Limited and Paschimi Rajasthan Dugdh Utpadak Sangh Limited by filing Special Leave Petitions, putting in question the decision dated 23.12.2011, rendered by a coordinate Bench of this court in the connected proceedings. It is construed to be inessential to dilate on factual details vis a vis the issue presently under scrutiny and, thus, the same have been avoided.
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Be that as it may, the Hon'ble Apex Court disposed of the Special Leave Petitions with the following directions/ observations:
"Taking into consideration the peculiar facts and circumstances of these cases, we modify the order of the High Court and direct the Ajmer Zila Dugdh Utpadak Sahakari Sangh, Rajasthan Cooperative Dairy Federation Ltd. and Paschimi Rajasthan Dugdh Utpadak Sahakari Sangh Ltd. to reconsider the issue of enhancement of age from 58 years to 60 years bearing in mind the communication of the Registrar, Cooperative Societies, dated 17.09.2008 and the clarification made thereof.
It is made clear that we have not expressed any opinion in regard to the merit of the claim and it shall be open for the Federation and the Societies aforesaid to take a final decision without being influenced by the earlier decision of the High Court. The question of maintainability and the other issues is also left open to be decided in an appropriate case."
As the records would reveal, thereafter the Board of Directors, RCDF took a decision in its meeting held on 12.6.2013 to enhance the age of superannuation of its employees and also those of its Units from 58 years to 60 years and pursuant thereto, an order dated 19.6.2013 was issued by the General Manager (Personnel & Administration) RCDF implementing the said decision. The respondent Sangh, however, notwithstanding thereof did not take any decision to effect such enhancement. Instead, by a resolution dated 10.7.2013, it decided to maintain the age of superannuation of its employees at 58 years. Being aggrieved, the appellant/writ petitioner instituted the aforementioned writ proceeding impeaching this decision and in the interim, sought for a direction to allow him to continue in service till 60 years.
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By order dated 28.6.2013, the learned Single issued notice. On the prayer for interim relief, the learned Single Judge, on a consideration of the directions/observations of the Hon'ble Apex Court, as extracted hereinabove, the order dated 19.6.2013 of the General Manager (Personnel & Administration) RCDF qua the decision of the RCDF to enhance the age of superannuation of its employees and also those of its Units from 58 years to 60 years and also of the fact that the appellant/writ petitioner was scheduled to retire with effect from 30.6.2013 granted a limited protection by way of a direction not to retire him till the next date fixed i.e. 5.7.2013. It is thereafter that the learned Single Judge upon hearing the learned counsel for the parties and on a consideration of the materials on record, has passed the order impugned in the instant appeal.
Learned counsel for the appellant has emphatically argued that the interim relief vide order dated 28.6.2013 having been granted after hearing the learned counsel for the parties present, the same could not have been declined at a later point of time. Without prejudice to this plea, learned counsel has urged further that as the RCDF is the apex body of all Milk Unions and the service conditions of their employees are governed by the Model Service Rules, Cadre & Recruitment Rules and its (RCDF) Standing Orders in the face of the decision taken by it (RCDF) to enhance the age of superannuation from 58 years to 60 years, it was impermissible for the respondent Union to act in contravention thereof. To reinforce this contention, the learned 5 counsel has drawn the attention of this court also, amongst others, to the resolution dated 28.1.1988 of the respondent Union and has urged that the interim relief, as prayed for, if not granted, would render the writ petition infructuous.
In reply, the learned counsel for the respondents has insistently contended that the present appeal, having been preferred against an interlocutory order, it is not maintainable in law and ought to be rejected in limine. It has been argued further that the respondent Union having consciously taken a decision not to enhance the age of retirement from 58 years to 60 years in terms of the letter and spirit of the decision dated 8.11.2012 of the Hon'ble Apex Court as well, the appellant/writ petitioner cannot claim to continue in service beyond 58 years. As the respondent Union is entitled take an independent decision on its own vis a vis the service conditions of its employees including the age of superannuation, the learned Single Judge was perfectly justified in declining the interim relief, they urged.
We have considered the materials on record for the limited purpose of deciding the appeal and have extended our thoughtful consideration to the rival submissions.
As the impugned order would reveal, the learned Single Judge, while refusing the relief, had recorded findings/observations as enumerated hereinbelow:
(i) The age of superannuation of the employees of the 6 respondent Union is 58 years;
(ii) Pursuant to the decision of the Hon'ble Apex Court dated 8.11.2012, the respondent Union has taken a decision not to enhance the age of superannuation from 58 years to 60 years;
(iii) Having regard to the purport of the operative directions contained in the decision dt.8.11.2012 of the Hon'ble Apex Court, the contention that the decision of the RCDF would be, ipso facto, applicable to all the Milk Unions, is not acceptable;
(iv) The Board of Directors of the respondent Union has taken a decision that the rules adopted by the RCDF, would not apply to its employees, unless specifically adopted;
(v) The age of superannuation of the employees of the respondent Union is presently 58 years and no employee can claim enhancement thereof as a matter of right;
(vi) No prima facie case, therefore, has been made out for interim relief;
(vii) In case the writ petition succeeds and the age of retirement of the employees of the respondent Union is enhanced from 58 years to 60 years, necessary consequential reliefs can be moulded by the court.
Upon hearing the learned counsel for the parties and on a prima facie assessment of the materials available on record, for the present, we don't feel persuaded to take a different view. Noticeably, the order dated 28.6.2013, whereby a direction had been issued by the learned Single Judge not to retire the appellant/writ petitioner from service, was limited by time and 7 that in view thereof, in our opinion, the plea that during the pendency of the writ petition, the said protection could not have been withdrawn, is clearly untenable. The tone and tenor of the order dated 28.6.2013 makes it abundantly clear that the interim protection was not only limited by time but the issue was kept open to be examined afresh, if warranted. The impugned order cannot, therefore, be faulted on this count, as the same would disclose that the learned Single Judge had comprehensively considered all relevant aspects to the extent called for to examine the expediency or otherwise of the interim relief and we find ourselves in respectful agreement with the observations recorded by him. For obvious reasons, we restrain ourselves from detailing further being conscious of the fact that the writ petition is pending final adjudication. Suffice it to mention that in the conspectus of facts, as narrated hereinabove, we do not find any cogent and convincing reason to intervene.
The appeal is, thus, dismissed. The stay petition is also rejected.
(P.K.LOHRA), J. (AMITAVA ROY), C.J. RANKAWAT JK, PS