Andhra Pradesh High Court - Amravati
Sri K.V.V Salyanarayana, vs The State Of Andhra Pradesh, on 21 June, 2024
8
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction)
FRIDAY, THE TWENTY FIRST DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD
WRIT PETITION NO: 12413 OF 2024
Between:
Sri K.V.V Satyanarayana, S/o. K.Venkatarathnam, aged about 60 years
Occ Chief Executive officer (CEO). M/s, Pedanindrakolanu LSCS, R/o.
H.No.3-3, Ganpavaram V and M, West Godavari District, Andhra
Pradesh.
...Petitioner
AND
1.
The State of Andhra Pradesh, rep. by its Principal Secretary, Agriculture
and Co-operation Department, Secretariat, Amaravathi, Andhra
Pradesh.
2.
The District Cooperative officer -DCO, EluruAA/est Godavari District
Andhra Pradesh.
3.
The District Co-operative Central Bank Limited, Eluru, rep. by its Chief
Executive Officer, (C.E.O.,), O/o. Panuganti vari Street, R.R.Pet, Eluru
Eluru/West Godavari District. A.P.
4.
M/s. The Pedanindrakolanu LSCS Ltd., No - WG -85, rep. by its Chair-
Person, Pedanindrakolanu (V), Nidamarru Mandal, Eluru/West
Godavari District, Andhra Pradesh
...Respondents
Petition under Article 226 of the Constitution of India praying that in
the circumstances stated
in the affidavit filed therewith, the High Court may
be pleased to issue of an appropriate Writ, Order, or direction more
particularly one in the nature of Writ of Mandamus declaring the action of
the Respondent No 2 and 3 officials in preventing the petitioner to be in
service upto age of 62 years, even after 4th Respondent passing resolution
dated 29.02.2024 by increasing the age of retirement from 60 to 62 years,
as illegal, arbitrary, without jurisdiction and contrary to the principles of
natural justice, violative of Fundamental Rights guaranteed under Article
14 and 21 of the Constitution of India and contrary to the provisions of the
Andhra Pradesh Cooperative Societies Act, 1964 and Rules made therein.
lA NO: 1 OF 2024
Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may be
pleased to direct the respondents to continue the services of the petitioner
till he attains the age of 62 years in 4*^ Respondent, pending disposal of
the above Writ Petition.
Counsel for the Petitioner: SRI SRINIVASA BASAVA FOR
SMT BOBBA VIJAYALAKSHMI
Counsel for the Respondent Nos. 1 & 2: GP FOR AGRCIULTURE &
COOPERATION
Counsel for the Respondent No.3: M/s SURAGANI VIJAYA KUMAR
The Court made the following order:
■ ^ ,
APHC010248502024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3328]
(Special Original Jurisdiction)
FRIDAY ,THE TWENTY FIRST DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE GANNAMANENI RAMAKRISHNA
PRASAD
WRIT PETITION NO: 12413/2024
Between:
1.SRI K.V.V SALYANARAYANA,, S/0. K.VENKATARATHNAM, AGED
ABOUT 60 YEARS, OCC CHIEF EXECUTIVE OFFICER (CEO), M/S,
PEDANINDRAKOLANU LSCS, R/0. H.NO.3-3, GANPAVARAM V AND
M, WEST GODAVARI DISTRICT, ANDHRA PRADESH.
...PETITIONER
AND
1.THE STATE OF ANDHRA PRADESH, REP. BY ITS PRINCIPAL
SECRETARY, AGRICULTURE AND CO-OPERATION DEPARTMENT,
SECRETARIAT, AMARAVATHI, ANDHRA PRADESH.
2.THE DISTRICT COOPERATIVE OFFICER DCO, ELURU/WEST
GODAVARI DISTRICT, ANDHRA PRADESH.
3.THE DISTRICT COOPERATIVE CENTRAL BANK LIMITED, ELURU,
REP. BY ITS CHIEF EXECUTIVE OFFICER, (C.E.O.,) 0/0.
PANUGANTI VARI STREET, R.R.PET, ELURU, ELURU/WEST
GODAVARI DISTRICT, A.P.
4.M/S THE PEDANINDRAKOLANU LSCS LTD NO WG 85, REP. BY ITS
CHAIR-PERSON, PEDANINDRAKOLANU (V) NIDAMARRU
MAN DAL, ELURU/WEST GODAVARI DISTRICT, ANDHRA
PRADESH.
...RESPONDENT(S):
Counsel for the Petitioner:
1. BOBBA VIJAYALAKSHMI
Counsel for the Respondent(S):
1.GP FOR SERVICES I
The Court made the following:
ORAL ORDER:
Heard Sri Srinivas Basava, Learned Counsel appearing on behalf of
Ms.Bobba Vijayalakshmi, Learned Counsel for the Writ Petitioner,
Sri R. Mahidhar Reddy, Learned Assistant Government Pleader for Agriculture
and Co-operation appearing for the Respondent Nos.1 and 2 and Sri Suragani
Vijaya Kumar, Learned Standing Counsel appearing for the Respondent No.3.
2. Learned Counsel for the Writ Petitioner has drawn the attention of this
Court to the Resolution made by the General Body of the Respondent No.4 -
Society dated 29.02.2024 (Ex.P.4) and also drawn the attention of this Court to
the common Order passed by this Court in W.P.No.3255 of 2023 and batch dated
06.05.2024 (Ex.P.7).
3. This common Judgment had upheld the power of the Society to enhance
the age of superannuation from 60 to 62 years through the Resolution made by
the General Body in compliance with the other provisions of the Act and the
Rules.
4. The present case is squarely covered by the common Order in W.P.No.
3255 of 2023 and batch dated 06.05.2024.
5. Accordingly, this Writ Petition stands allowed in terms of the common
Order in W.P.No.3255 of 2023 and batch dated 06.05.2024. No order as to costs.
6. Interlocutory Applications, if any, stand closed in terms of this order.
Sd/- M. SRINIVAS
ASSISTANT REGISTRAR
//TRUE COPY//
SECTION OFFICER
To,
1 The Principal Secretary, Agriculture and Co-operation Department
Pradesh.
State of Andhra Pradesh, Secretariat, Amaravathi, Andhra
2. The District Cooperative Officer -DCO, EluruAA/est Godavari District
Andhra Pradesh.
3 The Chief Executive Officer, (C.E.O.,), District Co-operative Central
Bank Limited, Eluru, O/o. Panuganti vari Street, R.R.Pet, Eluru
EluruA/Vest Godavari District, A.P.
4. The Chair-Person, M/s. The Pedanindrakolanu LSCS Ltd., No - WG -
85, Pedanindrakolanu (V), Nidamarru Mandal, Eluru/West Godavari
District, Andhra Pradesh.
5. One CC to Smt Bobba Vijayalakshmi, Advocate [OPUC]
6. One CC to M/s Suragani Vijaya Kumar, Advocate [OPUC]
7. Two CCs to GP for Agriculture & Co-operation, High Court of Andhra
Pradesh. [OUT]
8. Two CD Copies
(Along with a copy of the order dated 06.05.2024 in WP.No.3255 of 2023
and batch)
RAM
High court
DATED:21/06/2024
ORDER
ALLOWING THE WP
WITHOUT COSTS
HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD
W.P.Nos.3255, 3281, 8593, 9135, 15259, 15269,
15286, 15927, 17128, 18931, 18938, 25433, 27678, 27728,
32722 & 33335 of 2023; 153, 924, 965, 1635, 1962, 2448,
2461, 3529 & 4781 of 2024
COMMON ORDER IN W.P.Nos.15259. 15269. 15286, 15927. 18938.
25433, 27678, 27728. 32722. 33335 of 2023 and 153, 1962, 2448.
2461, 3529 and 4781 of 2024:
Heard Sri Kambampati Ramesh Babu, Sri N. Siva Reddy,
Sri Srinivas Basava representing Smt. Bobba Vijaya Lakshmi
learned respective Counsels for the Writ Petitioners in this batch
and Sri P. Vara Prasad, learned Asst. Government Pleader
representing the Principal Secretary, Agriculture and Cooperative
Department and the District Cooperative Officer.
2. This batch of Writ Petitions is filed by the employees
working at various levels in the Primary Agricultural Cooperative
Credit Societies in the State of Andhra Pradesh for seeking
enhancement of age of superannuation from 60 years to 62 years
as per the amendment made by the Government vide
G.O.Ms.No.15 dated 31.01.2022. This amendment is made by
the Government of Andhra Pradesh and is called as the Andhra
Pradesh Public Employment (Regulation of Age of
Superannuation) (Amendment) Ordinance 2022. This Ordinance
was later approved by the State Legislature and eventually
became an Act (Act No.4 of 2022) vide Gazette Notification No.4
dated 19.04.2022. Vide the Act No.4 of 2022, the Andhra
Pradesh Public Employment (Regulation of Age of
Superannuation) Act, 1984 has been amended, enhancing the
age of superannuation for the employees working in the
Government Departments from 60 years to 62 years.
3. The contention of the Writ Petitioners in these cases is
that the age of superannuation which applies to the employees of
the Government shall, ipso facto, apply to the employees working
in the Primary Agricultural Cooperative Credit Societies in the
State of Andhra Pradesh as per the provisions of the Statute
namely the Cooperative Societies Act, 1964 (Act No.7 of 1964)
and the Andhra Pradesh Cooperative Societies Rules, 1964.
4. Even though various submissions were advanced by
various learned Counsel for the Writ Petitioners, broadly the
contentious issue that had fallen for consideration before this
Court is:
Whether the benefit of Andhra Pradesh Public
Employment (Regulation of Age of Superannuation)
(Amendment) Act, 2022 (Act No.4 of 2022) is available to
the employees working in the Primary Agricultural
Cooperative Credit Societies in the State of Andhra
Pradesh in terms of the Cooperative Societies Act, 1964
and its Rules?
COUNSEL FOR THE WRIT PETITIONERS:
5. The learned Counsel for the Writ Petitioners have taken
this Court through the provisions of the above mentioned Statute
and the Rules. There is no dispute that the State of Andhra
Pradesh has made amendments in respect of extention of age of
superannuation to its employees from 60 years to 62 years vide
Act No.4 of 2022. Therefore, this Court has to see whether this
benefit of extention of age of superannuation arising out of this
Act 4 of 2022 would apply to the employees working in the
Primary Agricultural Cooperative Credit Societies or not. It would
be necessary to examine the relevant provisions of Act No.7 of
1964 along with Rules as amended from time to time.
6. Act No.7 of 1964 was enacted by the Parliament to
consolidate and amend the law relating to the Cooperative
Societies in the State of Andhra Pradesh based on Cooperative
Principles and Cooperative identity. The Respondent Primary
Agricultural Cooperative Credit Societies in the instant case are
the Registered Societies under the Act No.7 of 1964. Chapter
Xlll-B (titled as "Special Provisions Applicable to Cooperative
Credit Societies Identified Under Revival Package) was inserted
and was brought into effect by making necessary amendments
vide Act 16 of 2007. By virtue of this amendment, new
provisions, namely Sections 115-C & 115-D were added and
brought into effect. These are called the 'Special Provisions' and
are applicable to Primary Agricultural Cooperative Credit
Societies. Under Section 30 (1) of the Act No.7 of 1964, "the
ultimate authority of a Society shall vest in the General Body".
Clause-(xxiii) of Sub-section (2) of Section 30 would stipulate that
the "approval of the staffing pattern, pay and other allowances of
the employees of the society and contingencies," is also vested in
the General Body. Rules 28 of the A.P Cooperative Societies
Rules, 1964 deal with appointments, functions of the officers and
servants of the societies. Clause (b) of Sub-rule (4) of Rule 28
stipulates that General Body, on the recommendation of the
Managing Committee, is competent to revise the Service Rules or
Pay Scales provided that the expenditure towards pay and
allowances of the employees is less than 2% of the working
capital or less than 30% of the Gross Profit under 'intimation' to
the Registrar of Cooperative Societies. Clause (c) of Sub-Rule 4
of Rule 28 stipulates that Societies, except Societies mentioned
under Sections 115-C & 115-D of the A.P Cooperative Societies
Act, 1964, which are in receipt of State aid shall not frame any
Rules relating to age of retirement, leave rules, leave travel
concession and rules relating to loans to employees which shall
be in excess of the subsisting rules of Government concerning
these matters.
7. Clause (d) of Sub-rule (4) of Rule 28 states that the
Societies covered under Section 115-C & 115-D of the A.P
Cooperative Societies Act, 1964 may decide on the age of
superannuation of their employees and such age of
superannuation shall not be in excess of subsisting rules
governing the superannuation of the Government employees.
8. Sub-Rule (7) of Rule 28 (as amended on 04.02.2019)
would also indicate that every paid servant and officer of the
Societies mentioned in Sections 115-C & 115-D of the Act No.7 of
1964 are exempted from Rule 28(6) and that every paid servant
and officer of the Societies shall retire from service on attaining
such age that is not in excess of the subsisting rules governing
the age of superannuation of the Government employees.
9. Rule 28 of the A.P Cooperative Societies Act, 1964 as
amended from time to time is extracted hereunder:-
'28. Officers and servants of societies:-
{1) No Society shall appoint any person as its paid officer
or servant in any category of service, unless he possesses
the qualifications and furnished the security as specified by
the Registrar, from time to time, for such category of service
in the society or for the class of societies to which it
belongs.
(2)All the existing societies with and without state aid shall,
if not already approved, prepare service rules, within 45
days from the day of enforcement of these rules and submit
to the Registrar for approval, which, among others, shall
include the following if already not done so, with regard to
staffing pattern. Scale of pay and allowances. Method of
filling of posts, qualifications, and rules regarding
disciplinary proceedings and other service matters,-
(3)All existing societies shall also furnish to the Registrar
details of:
(i) Persons working in the society against the
existing posts along with their qualification;
(ii)Job Chart/Nature of work/Pay Scales for each
post/categories.
(iii)Staff in excess of staffing pattern if any,
prescribed by Registrar;
(iv)the expenditure towards pay and allowances
of the employees and its percentage to
working capital and gross income;
(v) identification of surplus staff or inadequate
staf,f if any, category wise, and how the
society, intends to deal with surplus staff or
inadequate staff;
(vi) Pay scales of existing staff and when they are
approved and by whom;
(vii) Working capital and Gross Income;
(4) Every society within 45 days of registration shall frame
and submit to the Registrar for approval of its staffing
pattern which shall include,-
(a) Service rules for its employee, specifying
staffing pattern, qualifications, method of
appointment, scales of pay and allowances.
responsibilities, duties, training, securities and
disciplinary rules etc.
(b) revision of any of the service rules or pay
scales etc. shall be made by the General Body on
the recommendation of the Managing Committee
provided the expenditure towards pay and
allowances of the employees are less than 2% of
the working capital or less than 30% of the Gross
Profit under intimation to Registrar of Cooperative
Societies. Provided further that If it is found to be
in excess of the said norms either in audit,
inspection or inquiry, the excess so spent shall be
recoverable from members of the Managing
Committee concerned under Section 60(1) of the
Andhra Pradesh Coop. Societies Act and the
Registrar shall have the powers to cancel such
pay revision or modify it as deemed fit and adjust
securities furnished by the paid servants.
(c) A society, except the Societies mentioned
under Section 115-C & D of the Andhra Pradesh
Co-operative Societies Act, 1964, in respect of
State aid shall not frame any rules relating to age
of retirement, leave rules, leave travel concession
and rules relating to loans to employees which
shall be in excess of the subsisting rules of
Government concerning these matters.
(d) The Co-operative Credit Societies covered
under Section 115-C & D of the Andhra Pradesh
Co-operative Societies Act, 1964 may decide on
the age of superannuation of their employees.
However, it shall not be in excess of the
subsisting rules governing the superannuation of
the Government employees. "
(5) No society shall appoint as its paid officer or servant in
any category of service any person who is related to any
director or member of the committee of a financing bank to
which the society is affiliated.
(6) Notwithstanding anything contained in the Bye
laws/special bye-laws service regulations of the Co
operative societies, except the Societies mentioned under
Section 115-C & D of the Andhra Pradesh Co-operative
Societies Act, 1964 every paid servant and officer of the
society other than those in the last grade service shall retire
from service on the After Noon of the last date of the month
on which he attains the age of 58 years.
The last grade servant of the society shall retire from the
service on the afternoon of the last date of the month on
which he attains the age of 60 years;
Explanation. -
(i) For the purposes of the rule, the expression
"last grade servant" means Office Subordinate
(formerly Attender) /Peon/ Watchman/ Scavenger
and other equivalent designations incorporated as
such in the staffing pattern as contained in the
bye-laws/ special bye-laws of the Cooperative
Society and approved by the Registrar.
(ii) A paid servant of officer of the society
including last grade servant, whose date of birth
falls on the first of a month shall retire from
service on the afternoon of the last day of the
proceeding month on attaining the age of (58) or
(60) years, as the case may be.
(7) The Cooperative Credit Societies mentioned in Section
115-C & D of the Andhra Pradesh Co-operative Societies
Act, 1964 are exempted from Rule 28 (6) and may frame
such bye-laws/special bye-laws of service regulations of the
Cooperative Credit Societies. Every paid servant and
officer of that Society shall retire from service on attaining
such age that is not in excess of the subsisting rules
governing the age of superannuation of the Government
employees.
10. For determination of the various issues involved in the
present case, reference to other provisions of the Act and Rules
may not be of much relevance. This apart, the amendment to
Sub-rule (7) of Rule 28 has come into effect on 04.02.2019, and
therefore, various Judgments which have interpretated provisions
prior to this amendment relating to the age of superannuation are
not of much relevance for determination of the present issue
inasmuch as the Court has to decide the niggling issue of age of
superannuation for the servants and officers of the Co-operative
Credit Societies only with reference to the amendments brought
into effect subsequently.
11. The Andhra Pradesh Cooperative Societies Rules
1964 have been promulgated in exercise of the powers conferred
to Sub-section (1) of Section 30 of A.P Cooperative Societies Act
1964 (Act No.7 of 1964). These Rules have been published in
A.P Gazette on 30.07.1964. The amendments made to Sub-rule
(7) of Rule 28 came into effect on 04.02.2019. Needless to state
that not only the Rules framed, but also the amendments made to
the Rule on 04.02.2019 have the force of law inasmuch as the
said Rules constitutes 'subordinate legislation'.
12. Learned Counsel for the Writ Petitioners would contend
that as per the Section 30 of the Act No.7 of 1964, the ultimate
authority of the Society vests with the General Body. The
General Body alone is the competent body that can deal with
staffing pattern, pay and other allowances etc., and other
contingencies relating to this is vested with the General Body.
13. Having considered the Rule position as indicated
above, at the admission stage, the learned Single Judge of this
Court, at different point of times, have granted interim reliefs in
Writ Petitions filed by the 'servants and officers' of the Society
seeking applicability of 'completion of 62 years' as the age of
superannuation. The Interim Orders were to the effect that the
Writ Petitioners shall be continued until they attain the age of 62
years of superannuation. In other words, the Interim Orders would
enhance the age of retirement from 60 years to 62 years.
SUBMISSIONS OF OFFICIAL RESPONDENTS:
14. The Principal Secretary, Agriculture and Cooperative
Department and the District Cooperative Officer have jointly filed
the Counter Affidavit. Principally, the contentions in the Counter
Affidavit as well as the submission of Sri P.Vara Prasad,
representing the Official Respondents are that the Act No.4 of
2022 (Amendment Act) amending the age of employees working
in Government would not apply. The second contention raised by
the said respondents is to the effect that unless Bye-laws are
amended by the respective Societies, the General Bodies of the
Societies are not vested with the power to enhance the age of
superannuation from 60 years to 62 years, since the Government,
vide Circular Memo dated 23.09.2022 had clarified that the
amendment made to Act No.4 of 2022 would only apply to the
Government Departments and other persons mentioned therein
but the same shall not be applicable to the 'servants and officers
working in Cooperative Credit Societies which fall under Sections
115-C & 115-D of Act No.7 of 1964. The third contention is that
the Resolutions passed by the General Bodies of the respective
Societies would have no force of law until the said Resolutions
enhancing the age of superannuation from 60 years to 62 years
are approved by the Registrar of Cooperative Societies.
15. Sri P. Vara Prasad, learned Assistant Government
Pleader, representing Principal Secretary, Agriculture and
Cooperative Department and the District Cooperative Officer, had
fourthly, contended that the Government of Andhra Pradesh had
issued the Model Service Regulations (Regulations) on
23.02.2021. He would submit that as per Para No.11 of Chapter-
Ill of the said Regulations 'every employee of the society shall
retire from service with effect from 1®' day of the month in which
he/she attains the age of 60 years'. Learned Counsel would
submit that in view of these Model Service Regulations,
particularly with regard to Para No.11 of Chapter-Ill, the servants
and officers of the Societies shall retire only after attaining the
age of 60 years but not 62 years.
DISCUSSION:
16. During the course of submissions, Sri Srinivasa
Basava, learned Counsel appearing for some of the Writ
Petitioners in some Writ Petitions had submitted that Rule 12 of
the A.P Cooperative Societies Rules, 1964 classifies various
Societies; that the Primary Agricultural Cooperative Credit
Societies are classified under Clause (b) of Sub-rule (1) of Rule
12 as "Credit Society": that Sub-Rule (5) deals with sub
classification as a) Apex Society b) Central Society and c)
Primary Society; that Clause (iii) of Sub-rule (5) of Rule 12
defines "Primary Society" to mean a Society which is neither an
apex nor a central society. Learned counsel for the Writ
Petitioners has also drawn the attention of this Court to
G.O.Ms.No.15 dated 04.02.2019 that led to amendments to Rule
28 of the Rules. Vide G.O.Ms.No.36 dated 01.03.2019, the
Government has issued Orders to implement Human Resource
(HR) Policy to Primary Agricultural Cooperative Credit Societies
employees by the Managing Committees as mentioned in
Annexure to the said G.O which contains recommendations; that
the Recommendation No.21 deals with retirement age and it
categorically states that every paid servant and officer of the
Society shall retire from service on attaining such age that is not
in excess of the subsisting Rules governing the age of
superannuation of the Government employees; that thereafter,
the Government has issued the G.O.Ms.No.90 dated 04.02.2020
for the purpose of issuing guidelines. In Para No.3 therein about
seven guidelines have been mentioned. The said guidelines are
in continuation to the earlier guidelines issued in G.O.Ms.No.36
dated 01.03.2019.
17. Learned Counsel for the Writ Petitioners has submitted
that as per Sub-rule (7) of Rule 28 which came into force on
04.02.2019 vide G.O.Ms.No.15 read with Clause (b) of Sub-rule
(4) of Rule 28, it is clear that the Managing Committee, after
having ensured that the expenditure towards pay and allowances
of the employees are less than 2% of the working capital or 30%
of Gross Profit under intimation to the Registrar of the
Cooperative Societies make recommendation to the General
Body and that as per Section 30 of the Act No.7 of 1964, the
General Body of the Society who has the ultimate authority may
either approve the recommendation or reject recommendation.
He further submits that once the Resolution has been passed by
the General Body approving the recommendation of the
Managing Committee, the Registrar of the Cooperative Societies
is only required to be 'intimated'. Sub-clause (b) of Sub-rule (4) of
Rule 28 makes it abundantly clear that there is no requirement of
seeking 'approval' of the Registrar of Cooperative Societies.
Rather a mere intimation would suffice. He would submit that in
the present set of cases, the recommendations have been made
by the respective Managing Committees to the General body and
the General Body, after having considered the recommendations
of the Managing Committees, and after ensuring that such
recommendations are in tune with financial consideration as
indicated therein, have passed Resolutions. Therefore, such
Resolutions would completely satisfy all the legal requirements.
18. Learned Counsel for the Writ Petitioners would submit
that the amended rule, which has the force of law does not
impose obligation on any Society (Primary Agricultural
Cooperative Credit Societies) to seek 'approval' either from the
Central Bank or from the Government. He would then submit that
the Model Service Regulations for PACCS, as referred by Sri P.
Vara Prasad, learned Assistant Government Pleader, stipulating
the requirement of 'approval from the Government' is rather
contrary to law.
19. Learned Counsel for the Writ Petitioners would
seriously attack the submissions of Sri P. Vara Prasad, learned
Assistant Government Pleader for Cooperation by contending
that these Model Bye-laws have been suggested by the Registrar
of the Cooperative Societies by Proceedings dated 23.02.2021
and these Proceedings are in the nature of Executive Instruction
and that these Model Bye-laws are contrary to the amended Sub
rule (7) of Rule 28 of A.P Cooperative Societies Act, 1964. They
would submit that the Executive Instruction can only supplement,
but can never supplant the Statute or the Subordinate Legislation.
20. It is pertinent to mention here that even though the
notices were issued to the various Primary Agricultural
Cooperative Credit Societies and have been served on them,
they have not evinced interest in even entering appearances and
making submissions one way or the other i.e., either in support of
the Writ Petitioners or in support of the Department of Agriculture
and Cooperative Societies and the District Cooperative Officer.
Even when pertinent question was posed by this Court as to what
is the stand of the Primary Agricultural Cooperative Credit
Societies and why they have not entered appearance, learned
Counsel for the Writ Petitioners have stated that they have no
interest in participating in the Court Proceedings because
General Bodies of the respective Societies have already resolved
in favour of enhancing the age of superannuation by following the
due process of law. Learned Counsel for the Respondents has
raised another contention that the present cases are squarely
covered by the Judgment of the Hon'ble Division Bench of this
Hon'ble Court dated 05.05.2023 in W.A.No.1033 of 2022 and
batch.
21. Sri P. Vara Prasad, learned Assistant Government
Pleader for Cooperation would contend that the Division Bench
had categorically held that the consent of the Government is
required and that enhancement of age of superannuation from 60
years to 62 years insofar as Primary Agricultural Cooperative
Credit Societies are concerned is not automatic.
22. Learned Counsel for the Writ Petitioners have
contended that the Judgment rendered by the Hon'ble Division
Bench is only with regard Corporations and that the law
governing Corporations has been considered by the Hon'ble
Division Bench and by taking into consideration various aspects
and the law governing Government Corporations and by taking
into account the deep and pervasive control on the administration
and finances by the Government on the Corporations, the Hon'ble
Division Bench, had given a finding that, it is mandatory to obtain
approval from the Government. It is mandatory for Corporations
to obtain approval from the Government and that a Resolution
made by the Board or the Managing Committee of Corporation
would have no effect without an approval from the Government.
ANALYSIS AND CONCLUSIONS:
23. Having considered the submissions of the learned
Counsel on either side and having considered the discussion
herein above, the following conclusions are arrived by this Court.
a) That this Court is in agreement with the submissions
of the learned Counsel for the Petitioners to the
effect that the Primary Agricultural Cooperative
Credit Societies where the Writ Petitioners are
working, fall under the categories as defined in
Section 115-C & 115-D of the Cooperative Societies
Act, 1964 (Act No.7 of 1964)
b) That on 04.02.2019 Sub-rule (7) came to be inserted
under Rule 28, which is categorical to the effect that
every paid Servant and Officer of a Society, which
falls within the purview of Sections 115-C & 115-D,
shall retire from service on attaining such age that is
not in excess of the subsisting Rules governing the
age of superannuation of the Government
employees. The current Statute governing the age of
Government employees is under Andhra Pradesh
Public Employment (Regulation of Age of
Superannuation) (Amendment) Act, 2022 (Act, 4 of
2022) and it prescribes the age of superannuation of
Government employees as 62 years. Hence, the
age of superannuation for 'paid servants and officers
working in PACCS shall be 62 years as per sub-Rule
(7) of Rule 48 of the Rules provided the respective
Society had passed a Resolution by complying with
Sub-rule (4) of Rule 28 of the Co-operative Societies
Rules, 1969.
c) That Clause (b) of Sub-rule (4) of Rule 28 would
provide that, if a society intends to revise any of the
service rules or pay scales etc., it shall be made only
by a Resolution of the General Body and that the
Resolution of the General Body which is preceded by
the recommendation of the Managing Committee and
that such recommendation of the Managing
Committee should be preceded with ensuring that
the expenditure towards Pay and Allowances of the
employees are less than 2% of the working capital or
less than 30% of the Gross Profit. It is also
stipulated in the Clause (b) of Sub-rule (4) of Rule 28
that, such Resolution approving the recommendation
made by the Managing Committee shall be
'intimated' to the Registrar of Co-operative Societies.
d) Clause (b) of Sub-rule (4) of Rule 28 would also
stipulate that, if the Managing Committee has
recommended without ensuring the financial viability,
as indicated above, the Resolution per se would not
become illegal and if excess amount has been paid,
the excess so spent shall be recoverable from
members of the Managing Committee concerned
under Section 60(1) of the Andhra Pradesh
Cooperative Societies Act and the Registrar shall
have the power to cancel such pay revision to modify
it as deemed fit and adjust securities furnished by the
paid servants.
e) Parity cannot be drawn between the Government
Corporations and the Primary Agricultural
Cooperative Credit Societies either in terms of
financial autonomy or the administrative autonomy.
Also, parity cannot be drawn between Government
Corporations and Primary Agricultural Cooperative
Credit Societies because the Primary Agricultural
Cooperative Credit Societies are governed under
Cooperative Societies Act, 1964 and A.P
Cooperative Society Rules, 1964. Special provisions
are enacted for Credit Societies which are brought
under the purview of Sections 115-C & 115-D of the
Act, 1964 and there is no comparable provision or
provisions governing the Government Corporations.
Therefore, for the reasons stated, no parity can be
drawn between the Government Corporations and
the Primary Agricultural Cooperative Credit Societies.
Therefore, the Judgment rendered by the Hon'ble
Division Bench of this Hon'ble Court in W.A.No.1033
of 2022 and batch dated 05.05.2023, is not
applicable to the set of facts in the present Writ
Petitions.
(f) The Model bye-law, which was cited by Sri P.
Vara Prasad, Learned Counsel for the Official
Respondents is held to be contrary to the parent
Statute and Subordinate Legislation namely the
Cooperative Societies Act, 1964 (Act 7 of 1964) and
the A.P Cooperative Societies Rules, 1964. It is
further held that the Model bye-law which was issued
by the Registrar of Cooperative Societies dated
23.02.2021 is only an Executive Instruction and it
does not have the force of law. {B.N. Nagarajan and
others etc., \/s. State of Mysore and Others, etc..
[(1966) 3 SCR 682], Para Nos. 3 to 24; State of
Maharashtra Vs. Jagannath Achyut Karandikar [1989
Supp (1) 393], Para Nos. 6 to 12; Union of India and
Another Vs. Ashok Kumar Aggarwal [(2013) 16 SCC
147], Para Nos. 59 to 62 and Jaiveer Singh and
Others \/s. State of Uttarakhand and Others [2023
SCC Online SC 1584], Para Nos. 46 to 49).
24. In view of the above conclusions drawn by this Court,
herein above, the Writ Petitions are allowed. The servants and
officers of all Primary Agricultural Cooperative Credit Societies
shall be retired on the last day of the month completing 62 years
of age. There shall be a further direction that such of those Writ
Petitioners who were made to retire on completion of 60 years of
age during the pendency of their respective Writ Petitions shall
now be reinstated into service, if they have not completed 62
years of age and they shall also be paid arrears of salary by the
respective Primary Agricultural Cooperative Credit Societies. It is
made clear that this direction is only applicable to such persons
who have filed Writ Petitions before they have attained the age of
60 years but interim protection could not be granted for any
reason. No Order as to Costs.
25. The Writ Petitions stand allowed as indicated above. No
order as to costs.
COMMON ORDER IN W.P.Nos.3255. 3281. 8593. 9135. 17128.
18931 of 2023: 924. 965 & 1635 of 2024:
26. Resolutions, if any, passed by the General Bodies of
the respective Respondent Societies, have not been placed on
record in these Writ Petitions.
27. In this premise, these Writ Petitions stand
dismissed. No order as to costs.
28. Interlocutory Applications, if any, stand closed in terms
of this Order.
(GANNAMANENI RAMAKRISHNA PRASAD, J)
Dt: 06.05.2024
JKSA/ns
HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA
PRASAD
WRIT PETITION No.
06.05.2024
JKS
