JUDGMENT
Ravi R. Tripathi, J.
1. The present petition is filed by the petitioner seeking relief of quashing and setting aside the order of compulsory retirement dated 31.10.1994, a copy of which is produced at Annexure ‘H’ to this petition.
2. Before we go to the substance in the challenge to the said order, the facts of the case are required to be noted because from the perusal of the said facts, the conduct of the respondent, Agricultural Produce Market Committee, Vadnagar (hereinafter referred to as “APMC”) and its office bearers reflect that the office bearers have hardly any regard for the orders of the Court. It is apparent from the record that they have acted in a manner so as to see that they are able to overreach the orders of the Court.
3. The petitioner herein joined the services of the APMC as Clerk in 1964 on probation. His services were confirmed on 01.10.1965. Thereafter, taking into consideration his satisfactory service he was promoted to the post of Inspector on 01.06.1966. The petitioner then earned next promotion and promoted to the post of Accountant on 01.02.1973. The petitioner was also given additional charge of the post of Secretary and was made ‘In-charge Secretary’.
4. It is the case of the petitioner that in the year 1990 the respondent-APMC asked him to execute a bond to the effect that, ‘he will collect a sum of Rs.5000/-, per month from the traders’ but as the petitioner did not succumb to the said demand, which according to the petitioner had no sanctity of law, he was suspended on 06.07.1990. Being aggrieved of that the petitioner was constrained to approach this Court by filing Special Civil Application No.6364 of 1990 wherein the Court was pleased to issue ‘Rule’ and granted stay against termination on 07.12.1990. Despite the fact that there was a valid order of the Court in operation, the respondent-APMC passed order of dismissal on 23.03.1991. The petitioner did not complain of the breach of an injunction granted by this Court by filing appropriate proceedings.
5. Be that as it may. The petitioner filed an appeal before the Director, Agricultural Marketing & Rural Finance being Appeal No.58 of 1991. The said appeal was allowed by order dated 12.11.1991 and dismissal order was set aside. But that did not bring an end of the agony of the petitioner. The petitioner had to approach this Court by filing Civil Application No.1247 of 1994 in the pending matter (Special Civil Application No.6364 of 1990) praying for a direction against respondent-APMC for implementation of the order passed in appeal whereby order of dismissal was set aside tantamounting to an order of reinstatement. In Civil Application No.1247 of 1994 the Court passed frequent orders, i.e. 15.07.1994, 28.06.1994, 15.07.1994, 22.07.1994 and finally on 27.07.1994. The respondent-APMC challenged the order of the Director of Agricultural Marketing & Rural Finance by filing Special Civil Application No.1824 of 1992 which is dismissed on 19.03.1998, against which the respondent-APMC filed Letters Patent Appeal No.549 of 1998, which also came to be dismissed on 22.07.1998. It is only thereafter that the petitioner was reinstated on 04.08.1994.
6. What follows now is important. The respondent-APMC then passed an order of compulsory retirement dated 31.10.1994, a copy of which is produced at Annexure ‘H’ to this petition, which is under challenge. The challenge is on various grounds including that there was no material before the respondent-APMC to pass the order of compulsory retirement. Mr. Clerk, the learned advocate submitted that the order of compulsory retirement is passed for extraneous consideration, keeping grudge against the petitioner as the earlier order of dismissal did not stand the test of legality in successive forums as set out hereinabove. The petitioner was reinstated only under compulsion having lost in all available forums. After reinstatement on 04.08.1994 within a short span of about two months the present order of compulsory retirement is passed, from which the attitude of the respondent-APMC towards the petitioner is reflected.
7. Mr. Clerk, the learned advocate appearing for the petitioner submitted that the services of the petitioner are governed by the ‘Agricultural Produce Market Committee, Employees Service Rules’, a copy of which is annexed at Annexure ‘I’, wherein Rule 11 provides that if an employee has put in 30 years’ continuous service. the APMC will have a discretion to retire him from service. It is further provided that in cases where an employee attains the age of 55 years, then the APMC will have a discretion to retire such employee either on completion of 30 years’ continuous service or attaining the age of 55 years, whichever is earlier. It is further provided in the same rule that in case the APMC thinks it proper, the services of such an employee will be extended on yearly basis, till he completes the age of 58 years. Mr. Clerk, the learned advocate submitted that date of birth of the petitioner is 14th June 1943 and as per Rule 11 he would have completed 55 years of age in the year 1998. Rule 11 is amended on 16.08.1974 whereby the part of Rule 11 which provided “30 years’ of continuous service” is deleted and the part providing ‘attaining the age of 55 years’ is retained. The learned advocate submitted Rule 11 was further amended by passing Resolution No.14 on 20.08.1996 whereby the retirement age is raised to 58 years, in light of that the petitioner would have retired on 30.06.2001.
8. Mr. B.S. Patel, the learned advocate submitted that under section 22 of the Gujarat Agricultural Produce Markets Act, 1963 (hereinafter referred to as “the Act”) power is conferred on the APMC with regard to appointment of a Secretary, who is to be appointed for every APMC, with the approval of the Director on such terms and conditions as may be prescribed by the APMC. Mr .Patel submitted that by virtue of section 22 it was within the powers of the APMC to provide for such terms and conditions as may be deemed fit by it. The question involved in this petition is not about the powers of APMC to provide the terms and conditions. In fact, it is the APMC itself who amended Rule 11 by Resolution No.14 on 20.08.1996, which was accorded approval by the Deputy Director on 10.07.1997. Even under unamended Rule 11 the petitioner could have been retired only on attaining the age of 55 years which he was to reach in the year 1998. In between Rule 11 is further amended by the APMC enhancing the retirement age to 58 from 55. The APMC itself has amended Rule 11 on 16.08.1974 whereby the second alternative of putting in 30 years’ continuous service on which an employee could have been retired, is deleted. In that view of the matter, 1996 amendment is applicable to the case of the petitioner and by virtue of that petitioner was entitled to continue in service till he attained the age of superannuation, i.e. 58 years.
9. Mr. B.S. Patel, the learned advocate appearing for the respondent-APMC submitted that the order of dismissal dated 23.03.1991 is passed on the ground of, ‘loss of confidence’ and that being so there was no reason for the APMC to continue the petitioner in service on his having completed 30 years’ service with the APMC. The submission of Mr. Patel is without any substance inasmuch as Rule 11 providing for retirement of an employee on completion of 30 years’ service was amended on 16.08.1974 and thereby the only time at which the employee could have been retired is, on attaining the age of 55 years, which the petitioner was to complete in the year 1998. In view of that and in view of the fact that the order of dismissal dated 23.03.1991 was quashed and set aside in the Appeal (No.58 of 1991) against which Special Civil Application was filed by the APMC before this Court, which too was dismissed and the APMC had failed in Letters Patent Appeal also. There was no reason for the APMC to have passed the order of compulsory retirement resorting to the ground of ‘loss of confidence’. The act of APMC of denying extension or continuance in service till the petitioner reached the age of superannuation of 55 years is unjust and arbitrary. That being so, in light of the fact that by amending Rule 11 in 1996, the petitioner could have been retired only in the year 2001, on attaining the age of 58 years. From the aforesaid facts it is clear that an employee who by virtue of Rule 11, as it originally stood, could have been retired from the service either on completion of 30 years’ service or on his attaining the age of 55 years. But then as Rule 11 stood amended on 16.08.1974, whereby the eventuality of retiring an employee on completion of 30 years’ service was given a go by, the only alternative available to the APMC to retire an employee was his attaining the age of 58 years (as amended in 1996). The fact that earlier the APMC had dismissed the petitioner, that dismissal order was not approved by the appellate authority and thereafter this Court also in two consecutive proceedings, namely Special Civil Application and Letters Patent Appeal did not uphold the action of APMC, that chapter was closed. In the present petition the only question which is required to be considered is ‘the validity of the compulsory retirement order’ and when it is considered on the facts of the case and in light of the relevant rules, the same cannot be allowed to stand, because the APMC has no power to pass an order of compulsory retirement on the basis of the petitioner having completed 30 years’ service, the petitioner could not have been retired compulsorily unless he has reached the age of superannuation of either 55 years and that event could have taken place only on the year 1998. Before that the rule stood amended and under the amended rule; the petitioner could have been retired only on attaining the age of 58 years.
10. In view of the discussion hereinabove the present petition is allowed. The order of compulsory retirement dated 31.10.1994 is hereby quashed and set aside. In consequence thereof the petitioner is ordered to be treated to have continued in service till he reached the age of superannuation, i.e. 58 years, and be paid all the consequential benefits thereof. The APMC is directed to pay all the consequential benefits like arrears of salary, etc. to the petitioner within three months from the date of receipt of this judgement. Rule is made absolute. No order as to costs.