HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPASW No. D-35 OF 2008 1 N. K. Mehta & ors. 2 Kamlesh Prabhakar Petitioners 1 State of J&K & ors. 2 State of J&K & ors. Respondent !Mr. M. K. Bhardwaj, Sr. Advocate with Mr. Ajay Abrol, Advocate in LPA D-35/2008. Ms. Mandeep Reen in LPASW 31/2008 ^Mr. Firdous Ahmad Mir, Adv. in D-35/08 Mr. M. K. Bhardwaj, Sr. Advocate with Mr. Ajay Abrol, Advocate in LPASW 31/2008. Hon'ble Mr. Justice Barin Ghosh, Chief Justice Hon'ble Mr. Justice J. P. Singh, Judge Date: 04.04.2009 :J U D G M E N T :
Per Barin Ghosh, CJ:
In the writ petition, which has been dismissed by the
judgment and order under appeal, the appellants
contended that they are entitled to serve their employer,
namely, the State Cooperative Agriculture Rural
Development Bank Limited until the age of 60 years and
not until the age of 58 years, as was being contended by
their employer. The judgment under appeal has been
2
rendered, principally, upon relying on a Division Bench
Judgment of this Court, which was rendered on April 30,
1999 in the case of Ved Pal Sharma v Citizens Co-
operative Bank Ltd., reported in 2000 SLJ 117. The said
Division Bench judgment followed the judgment earlier
rendered by a Single Bench of this Court in CSA
No.35/1994,reported as Kuldip Raj v Citizen Co-
operative Bank Ltd., in 1988 KLJ 83. The law which
stood changed after April 30, 1999 was, therefore, not
noticed in the said Division Bench and Single Bench
judgments.
There appears to be no dispute that the employer
society was governed by the J&K Cooperative Societies
Act, 1960. There appears to be also no dispute that the
employer society on July 3, 1971 made service rules in
relation to its employees. The learned Judge, while
rendering the judgment and order under appeal,
proceeded on the basis that the said service rules have
not been registered with the Registrar of Co-operative
Societies whereas the service rules upon which reliance
has been placed clearly show that the same stand
registered with the Registrar, Cooperative Societies. That
the said rules were registered with the Registrar,
Cooperative Societies too was not disputed by the parties.
There is no dispute that Rule 25 of the said rules makes it
3
clear that the employees of the employer society shall
retire at 60 years of age.
Section 124 of the J&K Cooperative Societies Act,
1960 authorized the Government to make rules, including
those pertaining to laying down service conditions of
employees of Co-operative Societies. There is no dispute
that on July 8, 1988, in exercise of powers conferred by
section 124 of the J&K Co-operative Societies Act, 1960,
which applied to all societies, the Government made the
rules called the J&K Co-operative Societies Services
Rules, 1988; while, however, doing so, in clause (o) of
section 2 thereof provided that b�societyb�(tm) means Co-
operative District Wholesale-store Society / Co-operative
Sale and Supply Society / Co-operative Multipurpose
Societies / Co-operative Service Society registered under
the Jammu and Kashmir Co-operative Societies Act,
1960, but did not include Co-operative Development
Banks registered as co-operative societies under the said
Act. However, in the note appended to Rule 24 of the said
rules, which contained directions pertaining to service
records, it was stated that the term b�other societiesb�(tm) means
Co-operative Societies, Co-operative Industrial Societies,
Co-operative Banks and the like. The term b�other
societiesb�(tm) however, did not feature in Rule 24 of the said
rules. The Division Bench referred to above, taking note of
the said note as also applicability of the said rules to all
4
societies, held that the said rules were also applicable in
relation to Co-operative Development Banks registered
under the said Act. Rule 13 of the said rules specifically
mentions that the persons appointed to the service shall
retire on attaining the age of 58 years or on the date the
society in which he was initially appointed ceases to
function. The object of the said rules was to make a cadre
of the employees of all Co-operative Societies and to
make them interchangeable by transfer and deputation.
There is no dispute that the said object was not fulfilled
and no attempt was made to fulfill the said object.
At the same time, there cannot be any dispute that
the rules made by the employer society in 1971, to the
extent the same determined the age of superannuation,
stood altered by the rules of 1988 made by the State.
Thus, on and from July 8, 1988, the employees of the
employer society became obliged to superannuate or
retire upon attaining the age of 58 years.
On July 8, 1989, the J&K Co-operative Societies Act,
1989 (hereinafter referred to as b�the said Actb�(tm)) came into
force, and by virtue of section 172(1) of the said Act, the
employer society, which was existing as on July 8, 1989,
and which had been registered under the Co-operative
Societies Act, 1960, became deemed to be registered
under the said Act and its bye-laws, so far as the same
are not inconsistent with the express provisions of the
5
said Act, continued to remain in force until altered or
rescinded. At this juncture, it is necessary to take note of
sub-section (2) of section 172 of the said Act which is as
follows:
All appointments, rules and orders made,
notifications and notices issued and suits and
other proceedings instituted under the said Act
(1960 Act) shall, so far as may be, be deemed to
have been respectively made, issued and
instituted under this Act.b�
Section 177 of the said Act repealed the 1960 Act
but, at the same time, provided that any rule made under
the provisions of the repealed Act, shall, in so far as the
same are not inconsistent with the provisions of the
repealing Act be deemed to have been done, taken,
issued and made under the corresponding provisions of
the repealing Act.
Section 176 of the said Act authorizes the
Government to make rules to carry out the purposes of
the Act, including conditions of service of officers and
other employees of Co-operative Societies.
In exercise of such power granted by section 176 of
the said Act, the Government made the J&K Co-operative
Societies Rules, 2001 (hereinafter referred to as b�the said
rulesb�(tm)). While making the said rules, the Government
provided in sub-rule (1) of rule 5 of the said rules the
6
subject-matters which are required to provide for in the
bye-laws of the Co-operative Societies; and in sub-rule (2)
of Rule 5 provided that in the bye-laws they may provide
for the matters enumerated from clauses (e) to (f)
thereunder. Clause (e) of sub-rule (2) of Rule 5 provided
the method of recruitment, the conditions of service and
the authority competent to fix, revise or regulate the
scales of pay and allowances of paid officers and
employees of the societies and the procedure to be
followed in the disposal of disciplinary cases against
them. The said rules did not provide for the service
conditions of the employees of Co-operative Societies,
instead granted liberty to them to provide for the same.
There cannot be any dispute that by reason of
continuation of the rules made under the 1960 Act by
section 177 of the said Act, the 1988 rules made by the
Government continued to remain in force until such time
the said rules of 2001 came into effect.
The short question is whether by reason of coming
into force of the 2001 rules, the 1988 rules became
inconsistent with the provisions of the Act, inasmuch as
the said rules in no uncertain terms authorized the
Societies to make bye-laws pertaining to conditions of
service of their employees and whether the rules
governing the conditions of service framed by the
7
respondent-employer in 1971 automatically stand
revived?
Rule 26 of the 1988 rules repealed all the then
exiting rules, except the Common Cadre Rules of 1976.
When the Government under section 124 of the J&K Co-
operative Societies Act 1971 had power to frame rules to
lay down conditions of service of the employees of Co-
operative Societies, it goes without saying that, such
power included the power to repeal all rules, though not
made by the Government, but laid down conditions of
service of employees of Co-operative Societies, including
the 1971 Rules made by the respondent-employer.
In the circumstances, the 1971 Rules made by the
respondent-employer having been repealed by the 1988
rules, by reason of the said rules, which authorized Co-
operative Societies to provide in their bye-laws the
conditions of service of their employees, the 1971 Rules
made by the respondent Co-operative Society, there
cannot be any dispute, did not revive since the said rules
indicated no intention to revive the same or similar rules.
Further, the Co-operative Societies by the said rules have
been authorized to provide for in their bye-laws conditions
of service of their employees and their appears to be no
dispute that as yet no such step has been taken by the
employer society to provide for the same in their bye-laws
and, at the same time, the 1971 rules, it is nobodyb�(tm)s case,
8
were part of the bye-laws of the employer society, though
the same was registered with the Registrar, Co-operative
Societies.
The conclusion, therefore, would be that the 1988
rules, framed by the Government, governing the service
conditions of the employees of the Co-operative Societies,
including those of the employer society, still are in force
and, as such, there is no scope of interference with the
judgment and order under appeal. This conclusion is
based on section 24 of the General Clauses Act, 1977
(1920 AD).
However, before we conclude, it would be
appropriate on our part to state that the questions raised
in the writ petition were, in fact, not covered by the
judgments referred to above and the same were required
to be answered independently. We may further point out
that the said rules have made a great departure from what
had been provided in the 1988 rules having granted
power to the Co-operative Societies to frame rules
pertaining to service conditions of their employees as part
of their bye-laws. The 1988 rules would become
inconsistent with the rules governing service conditions as
and when framed by Co-operative Societies in their bye-
laws, liberty for which has been granted by the said rules.
At the same time, there being no authoritative
pronouncement that the rules governing the service
9
conditions made by the societies prior to coming into force
of the 1988 rules were repealed by the 1988 rules, the
petitioners did have reason to come to this Court to seek
continuation of their service until 60 years and, in the
circumstances, though we dismiss the appeal, but make it
clear that the petitioners having rendered service despite
having crossed the age of 58 years on the strength of the
orders of this Court, should not be made to repay any part
of their salaries drawn in course thereof.
Because we have stated above that substantial
questions of law had been raised in the writ petition, we
award no cost against the appellants and, accordingly,
make it absolutely clear that on account of the present
litigation, which includes the writ petition, the petitioners-
appellants will not be saddled with any litigation cost of
any nature. We are disturbed to note that by an order
dated July 11, 2008, an attempt had been made to
recover litigation costs alleged to have been incurred by
the employer society to defend the present litigation. It is
made clear that no such litigation cost shall be recovered
from the appellants.
The appeals are, accordingly, dismissed.
(J. P. Singh) (Barin Ghosh)
Judge Chief Justice.
Jammu,
04 .04.2009
A. H. Khan, JR.
10
