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SCA/2221/1995 2/ 3 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2221 of 1995
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS
JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
LALITKUMAR
DALICHAND KAMDAR & 1 - Petitioner(s)
Versus
SABARKANTHA
DIST COOP MILK PRODUCERS UNION LTD & 2 - Respondent(s)
=========================================================
Appearance
:
MR
AM RAVAL for
Petitioner(s) : 1 - 2.
MR SI NANAVATI for Respondent(s) : 1 -
2.
MR JASWANT K SHAH AGP for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 03/05/2010
ORAL
JUDGMENT
1.0 This
Court on 22.03.1995 has passed the following order:
Notice
returnable on 19.04.1995 to be placed with Special Civil Application
No. 1302 of 1991. D.S. permitted.
2.0 The
matter was admitted vide order dated 30.06.1995.
3.0 It
is required to be noted that the Special Civil Application No. 1301
of 1995 is rejected of by this Court ( Coram: S.K. Keshote, J.) vide
order dated 24.08.1999 which is reproduced as under:
1. The petitioner, a retired employee of the
respondents, by this Special Civil Application praying
for declaration of the service rules framed by the
respondent at Annexure-D as ultravires to the Gujarat
Cooperative Societies Employees (Condition of Service)
Rules, 1993 (hereinafter referred to as “Rules, 1993”).
The next prayer has been made for the declaration that
the age of superannuation of employees of the Cooperative
Societies will be governed only by Rules, 1993
aforestated. Further prayer has been made to declare
that the age of retirement of the employees of the
Society is to be taken to be of 58 years as per the
Rules, 1993. Lastly, the prayer has been made for
quashing and setting the order at Annexure-F under which
the petitioner was ordered to be retired from the service
on 28/2/95 at the age of 55 years.
2. The learned counsel for the petitioner contended that
the age of superannuation of the petitioner should have
been taken to be 58 years as per the Rules, 1993. It has
next been contended that as per the appointment order of
the petitioner his retirement age should have been taken
to be 58 years. It has next been contended that
subsequently this retirement age has been increased to 60
years by the society and even if this is not accepted
then as per the Rules, 1993 of the State Government, the
age of retirement should have been taken to be 58 years.
Lastly, it is contended that before retiring the
petitioner at the age of 55 years the opportunity of
hearing should have been given to him. In support of
this contention the learned counsel for the petitioner
placed reliance on the decision of the apex court in the
case of Abraham Jacob & Anr. Vs. Union of India
reported in 1998(4) SCC 65. Mr.Shukla supported the
impugned order.
3. After giving my thoughtful consideration to the
submissions made by learned counsel for the parties, I am
of the considered opinion that none of the contentions
raised by the learned counsel for the petitioner is of
any merits and substance.
4. I do not find anything on the record of this Special
Civil Application wherefrom it can be taken that in the
appointment order of the petitioner his age of the
superannuation is mentioned. In respect of the documents
at Annexure-C, I find under some resolution of the
Society, the age of the retirement of the employees of
the Society was raised from 58-60 years. The copy of
that resolution has not been produced nor any other
document has not been produced in support of this
document. Even if it is taken to be correct then too it
is of little help to the petitioner because the Rules of
the Society were amended from 1/4/1990. Under these
Rules at Annexure-D, I find that the age of retirement is
provided at the age of 55 years. This is the Rule which
has to be taken care of by the Society and the employees
are to be retired at the age of 55 years.
5. Validity of the Rules of the Society have been
challenged on the ground as are being contrary to the
Rules framed by the State Government. The Rules framed
by the State Government are produced on the record of
this Special Civil Application at Annexure-C. These are
only draft rules and the same cannot be acted upon. The
learned counsel for the petitioner has not produced on
the record of this Special Civil Application any document
to show that these Rules have been finalized ultimately.
Draft rules even if it is framed by the State Government
cannot supercede the service rules framed by the Society
so long as the same are not finalized in accordance with
law. These are not binding on the Society and the
service rules of the Society only on the basis of the
draft rules cannot be held to be ultravires of the same.
The decision of the apex court on which reliance has been
placed by the learned counsel for petitioner is of little
help to him. The age of the superannuation has to be
regulated as per the Rules of the Society and what
precisely it has been done in the present case.
In the result, the Special Civil Application
fails and the same is dismissed. Rule discharged.
3.0 Therefore,
for the reasons stated in the aforesaid judgment and order dated
24.08.1999, this petition is dismissed. Rule is discharged with no
order as to costs. Interim relief, if any, stands vacated.
4.0 A
copy of the order dated 24.08.1999 passed in Special Civil
Application No. 1301 of 1995 shall be kept along with this order.
(K.S.JHAVERI, J.)
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