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SB Civil Writ Petition No.3039/2009
Som Nath Vig. vs. State of Raj. & Ors.
S.B. Civil Writ Petition No.3039/2009
Som Nath Vig.
vs.
State of Rajasthan and others.
Date : 29.4.2009
HON'BLE MR. PRAKASH TATIA, J.
Mr.Girish Sankhala, for the petitioner.
Mr.Rajesh Joshi ) for the respondents
Mr.IS Pareek )
- - - - -
REPORTABLE
Heard learned counsel for the parties.
The petitioner was appointed on 21.4.1981 as
Pharmacist with the respondent Sri Ganganagar
Sahakari Upbhokta Wholesale Bhandar Ltd. and his
date of birth is 2.5.1951. The petitioner is going
to attain the age of superannuation i.e. 58 years
on 2.5.2009. The Registrar, Cooperative Societies
issued the order on 17.9.2008 (Annex.3) under Rule
39 of the Rajasthan Cooperative Societies Rules,
2003 (for short ‘the Rules of 2003’) whereby the
societies in general have been directed to
consider the matter regarding increase of age of
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SB Civil Writ Petition No.3039/2009
Som Nath Vig. vs. State of Raj. & Ors.
superannuation from 58 years to 60 years. The said
direction issued by the Registrar, Cooperative
Societies, Jaipur dated 17.9.2008 has not been
complied by the respondent society and, therefore,
the petitioner was informed that he is to retire
on 2.5.2009.
According to the petitioner, the respondent
society is running in profits for last three
financial years and is bound to take a decision by
way of resolution to be passed in the meeting of
Board of Directors. It is submitted that the
decision is not being taken by the respondent
society so that the petitioner may retire after
attaining the age of 58 years and there is every
likelihood that the respondent society may take a
resolution thereafter.
The respondent society has submitted reply to
the writ petition and annexed a statement of
strength of the employees to show that there is
sanctioned strength of 24 employees against which
25 are working. It is submitted that the
respondent in view of the above fact cannot
increase the age of superannuation of the
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SB Civil Writ Petition No.3039/2009
Som Nath Vig. vs. State of Raj. & Ors.
employees from 58 to 60 years. It is also
submitted that the order dated 17.9.2008 clearly
shows that it is only a desire of the Registrar
that in certain circumstances only, the age of
superannuation be increased from 58 to 60 years
and the society has decided not to increase the
age of superannuation. It is also submitted that
no mandamus can be issued to the society directing
the society to pass resolution so as to increase
the age of superannuation of the employees from 58
to 60 years. It is also submitted that the order
dated 17.9.2008 is not enforceable as the society
is free to take its own decision and no one can
take the right of the society for increasing the
age of superannuation.
Learned counsel for the petitioner in support
of his case relied upon the judgment of this Court
delivered in the case of Basudev Singh vs. The
Rajasthan State Cooperative Bank & Anr. reported
in 1993(3) WLC 198, copy of which has been shown
to this Court. Learned counsel for the petitioner
also relied upon the judgments of this Court
delivered in the cases of (1) Dharmi Lal Dama vs.
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SB Civil Writ Petition No.3039/2009
Som Nath Vig. vs. State of Raj. & Ors.
State of Rajasthan and ors. reported in 2009(1)
WLC (Raj.) 540 and (2) Board of Indian Medicine,
Rajasthan vs. Rajasthan Indian Medicine Board
Karamchari Sangh and another reported in 2008(3)
WLC (Raj.) 368.
I considered the submissions of learned
counsel for the parties and perused the facts of
the case.
Rule 39(1) of the Rules of 2003 reads as
under:-
“39. Officers and employees of co-
operative societies .-
(1)Notwithstanding anything contained in the
bye-laws of any society, no co-operative
society shall appoint any person as its paid
officer or employee in any category of
service, unless he possesses the
qualifications and furnishes the security,
if so specified by the Registrar from time
to time, for such category of service in the
society, or for the class of society to
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Som Nath Vig. vs. State of Raj. & Ors.
which it belongs. The conditions of service
including discipline and control of the
employees of the societies shall be such as
specified by the Registrar.
(2)No co-operative society shall retain in
service any paid or employees, if he does
not acquire the qualifications or furnish
the security as is referred to in sub-rule
(1) within such time as the Registrar may
direct.
(3)The Registrar may for special reasons,
relax in respect of any paid officer or
employee, the provisions of this rule in
regard to the qualifications he should
possess or the security he should furnish.
(4)Where it comes to the notice of the
Registrar that a paid officer or servant of
a society has committed or has been
otherwise responsible for misappropriation,
breach of trust or other offence, in
relation to the society, the Registrar may,
if in his opinion, there is prima facie
evidence against such paid officer or
servant and the suspension of such paid
officer or servant is necessary in the
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SB Civil Writ Petition No.3039/2009
Som Nath Vig. vs. State of Raj. & Ors.
interest of the society direct the committee
of the society pending the investigation and
disposal of the matter, to place or clause
to be placed such paid officer or servant
under suspension from such date and for such
period as may be specified by him.
(5)On receipt of a direction from the
Registrar under sub-rule (4), the committee
of the society shall, notwithstanding any
provision to the contrary in the bye-laws,
place or cause to be placed the paid officer
or servant under suspension forthwith.
(6)The Registrar may direct the committee to
extend from time to time the period of
suspension and the paid officer or servant
so suspended shall not be reinstated except
with the previous sanction of the Registrar,
whose decision shall be final.
(7)If the committee fails to comply with the
direction issued under sub-rule (4), the
Registrar may make an order placing such
paid officer or servant under suspension
from such date and for such period, as he
may specify in the order and thereupon the
paid officer or servant, as the case may be,
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SB Civil Writ Petition No.3039/2009
Som Nath Vig. vs. State of Raj. & Ors.
shall be under suspension.
(8)Immediately after placing the employee
under suspension under sub-rule (4) or (7)
as the case may be, the society shall
initiate disciplinary action against the
suspended employee under the prevalent
service/disciplinary rules applicable on the
employee.”
Rule 39 of the Rules of 2003 clearly provides
that the condition of service including discipline
and control of the employees of the societies
shall be such as specified by the Registrar and,
therefore, the Registrar has ample jurisdiction to
issue such direction to the society. The order
passed by the Registrar dated 17.9.2008 is not
under challenge. Even after this position, learned
counsel appearing for the respondent society is
right in saying that the order dated 17.9.2008 is
only a direction to the society to consider the
case of increase in the age of superannuation by
taking into account the relevant consideration and
thereafter, the society may take a decision and
the order dated 17.9.2008 is not a direction to
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SB Civil Writ Petition No.3039/2009
Som Nath Vig. vs. State of Raj. & Ors.
the society to increase the age of superannuation
from 58 to 60 years. Learned counsel for the
respondent society also submitted that since the
respondent society has not taken decision to
increase the age of superannuation from 58 to 60
years, therefore, the petitioner cannot get any
relief.
So far as the issue involved in this writ
petition with respect to the fact that whether the
society can refuse to take a decision in pursuance
of the directions issued by the Registrar dated
17.9.2008 is concerned, from the reply as well as
stand taken by the respondents, I do not find that
the respondent society’s board ever considered the
resolution dated 17.9.2008 in its meeting and
decide not to increase the age of superannuation.
The respondent’s power to pass any appropriate
order in its own meeting has not been taken away
by the order dated 17.9.2008 nor it is proposed to
be taken by the order of this Court. The order
passed by the Registrar cannot be ignored and the
respondents should have considered the matter in
its board meeting objectively and without any bias
and should have taken a decision whether to
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SB Civil Writ Petition No.3039/2009
Som Nath Vig. vs. State of Raj. & Ors.
increase the age of superannuation or not ?
In this case, learned counsel for the
petitioner pointed that the petitioner is working
as Pharmacist and sanctioned post is five and
against this, only three are working, is the
admitted case in view of the stand taken by the
respondent society and the document Annexure-R.3/1
produced by the respondent society itself. Looking
to the totality of the facts, when the Registrar
is an authority under the Rajasthan Cooperative
Societies Act and has ample power to issue
directions in relation to service matters, the
respondent may be directed to convene the meeting
to consider the issue of increase of age of
superannuation of its employees.
In view of the above, this writ petition is
allowed and it is directed that the respondent
shall convene the meeting of the Board and
consider the directions issued by the Registrar on
17.9.2008 and shall take a decision and since the
petitioner is going to retire on 2.5.2009 and in
such a short period, the Board cannot take a
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SB Civil Writ Petition No.3039/2009
Som Nath Vig. vs. State of Raj. & Ors.
decision by convening the meeting, therefore, any
order if passed, then it be passed taking into
account that the petitioner’s right how can be
safeguarded, if the Board decides to take the
decision to increase the age of superannuation
from 58 to 60 years.
The respondent shall convene the meeting in
accordance with its bye-laws and expeditiously
pass the resolution in either way within a period
of one month and convey it to the petitioner.
In case, any order adverse is passed against
the petitioner, the petitioner will be free to
approach this Court.
(PRAKASH TATIA), J.
S.Phophaliya