Raj Kumar (In Wria No.-1420 Of ... vs State Of U.P. Thru. Director, ...
2022 Latest Caselaw 656 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 136 of 2022
 

 
Appellant :- Raj Kumar (In Wria No.-1420 Of 2022)
 
Respondent :- State Of U.P. Thru. Director, Directorate Of Fishers And Another
 
Counsel for Appellant :- Rahul Roshan Dubey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Subhash Vidyarthi,J.

Heard Sri Rahul Roshan Dubey, learned counsel for the appellant, learned Standing Counsel representing the State-authorities and Sri Pratul Srivastava, learned counsel for respondent no.2.

This intra-court appeal impeaches the judgment and order dated 15.03.2022 passed by learned Single Judge in Writ-A No.1420 of 2022 whereby the writ petition filed by the appellant-petitioner challenging the order dated 17.09.2021 rejecting his claim relating to enhancement in age of superannuation from 58 years to 60 years has been dismissed.

The appellant-petitioner was an employee of U.P. Matsya Jivi Cooperative Federation Limited, which is a Cooperative Society. The age of retirement of the employees working with the said Cooperative Society was 58 years as per Rule 23 of the Service Rules regulating the conditions of service of the appellant-petitioner which are known as mRrj izns"k erL; thoh lgdkjh la?k fyfeVsM y[kuÅ ds lsok fu;e- Rule 23 of the said Service Rules is quoted herein below:-

"23. lsok fuo`fRr%&

erL; la?k ds fdlh deZpkjh dh lsok fuo`fRr dh vk;q 58 o'kZ dh gksxhA izfrca/k ;g gS fd ;fn erL; la?k dk dksbZ deZpkjh ;k erL; la?k }kjk lsok;ksftr dksbZ lsok fuo`fRr lgdkjh lsod%&

¼d½ vius in ds fy, fo"ks'kr% vgZ gks vkSj vius drZO;ksa dk ikyu djus ds fy, "kjhjr% LoLFk gks]

¼[k½ izca/k desVh mldh lsok esa jksdus ds fy;s ladYi ikfjr djsa] vkSj

¼x½ izLrkfor lsokof/k c As per aforequoted provision any employee of respondent no.2 would retire at the age of 58 years with the proviso that in case an employee is specially eligible for the post and is physically fit to discharge his duties and the Managing Committee passes a resolution to the said effect, the employee concerned can be retained in service upto the age of 60 years with the caveat that the Registrar of the Cooperative Society does not have any objection. Thus, in absence of any resolution of the Committee of Management as per requirement of Rule 23 (kha) and also in absence of any ''No Objection' from the Registrar as per requirement of Rule 23 (ga), every employee is to be retired at the age of 58 years. The date of birth of the appellant-petitioner is 01.01.1963 and in terms of Rule 23, he was to be retired on his attaining the age of 58 years i.e. on 31.12.2020. However, it appears that no order retiring the appellant-petitioner was passed and he continued to work and discharge his functions till 25.02.2021. The order retiring the appellant-petitioner w.e.f 31.12.2020 was passed on 25.02.2021 by the Managing Director of the Employer-Cooperative Society and it was further ordered that the payment made to the appellant-petitioner after 31.12.2020 shall be recovered from him.

The appellant-petitioner made an application dated 15.03.2021 praying therein that he may be given a chance to serve respondent no.2. The said prayer was considered and by means of an order dated 17.09.2021, the Managing Director of the Cooperative Society concerned rejected the said prayer stating therein that the resolution of the Cooperative Society for enhancing the age of superannuation from 58 to 60 years has been given approval by the U.P. Cooperative Institutional Services Selection Board (hereinafter referred to as "Institutional Board") on 09.03.2021 as such the said enhancement of age of superannuation shall be applicable w.e.f. 09.03.2021 and since the appellant-petitioner had already retired on 31.12.2020, as such he is not entitled to any benefit of enhancement of age of superannuation. Challenging the said order dated 17.09.2021 the appellant-petitioner filed Writ-A No.1420 of 2022, which has been dismissed by means of the order dated 15.03.2022 passed by learned Single Judge, which is under appeal herein.

It is to be noticed that Rule 98 of the Service Rules clearly provides that as per requirement, any amendment or addition or change in the Service Rules can be made only with the approval of the Institutional Board. Rule 98 of the Service Rules is quoted herein below:-

"98. vko";drkuqlkj bu lsok fu;eksa esa ifjo)Zu] ifjorZu rFkk la"kks/ku lsok e.My ds vuqeksnu ls fd;s tk ldsxssA

Admittedly, the resolution of the Committee of Management of the employer-Society passed on 30.09.2020 whereby it was resolved to enhance the age of superannuation of the employees from 58 to 60 years was accorded approval by the Institutional Board only on 09.03.2021, as such in terms of the provisions contained in Rule 98 of the Service Rules, enhancement in age of superannuation shall be applicable w.e.f. 09.03.2021 meaning thereby the said benefit will not be available to the employees who attained the age of superannuation prior to 09.03.2021.

It is true that resolution of the Committee of Management for enhancing the age of superannuation was passed on 30.09.2020 whereas the appellant-petitioner attained the age of superannuation on 31.12.2020 that means the resolution preceded the date on which he attained the age of superannuation. However, enhancement in age of superannuation in terms of the said resolution of the Committee of Management, dated 30.09.2020 shall be applied only once it is approved under Rule 98 of the Service Rules by the Institutional Board. The Institutional Board, as observed above, approved the resolution only on 09.03.2021, as such we are of the considered opinion that the appellant-petitioner was not entitled to be given the benefit of enhancement of age from 58 to 60 years.

Learned counsel for the appellant-petitioner has argued that as a matter of fact, the employer-Cooperative Society permitted the appellant-petitioner to continue to work even after 31.12.2020, as such in terms of the provisions contained in Rule 23, his term stood extended which was available till he attains the age of 60 years. The said order rejecting the claim of the appellant-petitioner to be retired at the age of 60 years as also the order by which he has been retrospectively retired passed on 25.02.2021 w.e.f. 31.12.2020 were illegal and learned Single Judge has not considered the said aspect of the matter which vitiated the judgment and order under appeal.

The aforesaid submission made by learned counsel for appellant-petitioner is highly misconceived.

Rule 23 of the Service Rules contains the provision for extension in service beyond the age of 58 years. However, such extension in service is subject to three pre-conditions. Firstly, the employee claiming extension in service should be ''specially eligible' for the post and he should be physically fit to perform the duties of his post. Secondly, the Committee of Management of the Cooperative Society should have passed the resolution granting extension in service to the employee concerned and thirdly, there should be No Objection from the Registrar for extension of service.

In the instant case, learned Single Judge has noted clearly that there is no resolution passed by the Committee of Management for granting extension in service to the appellant-petitioner. The said finding could not be controverted by the appellant-petitioner and as such we are in complete agreement with the inference drawn by learned Single Judge that the appellant-petitioner cannot claim any extension in service in terms of the provisions contained in Rule 23 of the Service Rules.

For the reasons indicated above, we are of the considered opinion that the judgment and order passed by learned Single Judge which is under appeal herein, does not warrant any interference by this Court in this special appeal.

Resultantly, the special appeal is dismissed.

However, there will be no order as to costs.

Order Date :- 7.4.2022

Renu/-