Orissa High Court
Sanyasi Maharana vs The Commissioner -Cum on 15 November, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO.24340 of 2014
In the matter of an application under Article 226 of the Constitution of
India.
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Sanyasi Maharana .... Petitioner
-versus-
The Commissioner -cum- .... Opposite Parties
Secretary, Department of Co-
operative & Others
For Petitioner : Mr. A.P. Bose, Advocate
For Opposite Parties : Mr. S.N. Pattnaik, AGA
(for O.P. Nos.1 & 2)
Mr. K.P. Nanda, Advocate
(for O.P. No.4)
CORAM:
JUSTICE V. NARASINGH
DATE OF HEARING : 31.10.2022
DATE OF JUDGMENT: 15.11.2022
V. Narasingh, J.
1. The petitioner. who was working as a Junior Supervisor in the
office of the Berhampur Co-operative Central Bank, (hereinafter
referred to as "the Central Bank", for convenience of ready
reference) has approached this Court under Article 226 of the
Constitution of India assailing the order passed by the Central
Bank by order dated 23.07.2014 at Annexure-4, intimating him
about his retirement of service with effect from 31.08.2014, on
attaining the age of superannuation of 58 years and petitioner has
also sought for a direction to the Opposite Party No.2 (The
Registrar Co-operative Society), Opposite Party No.3.
(Management-in-charge, Berhampur Co-operative Central Bank-
cum-Collector) and Opposite Party No.4-(The Secretary,
Berhampur Co-operative Central Bank, Berhampur) "to bring
him back to service" and allow him to continue till he attains age
of 60 years.
2. The petitioner joined the service of Berhampur Cooperative
Central Bank Ltd. on 16.07.1985.
3. It is on record that the Government of Odisha in Finance
Department issued a resolution dated 28.06.2014 at Annexure-2
enhancing the retirement age from 58 to 60 years for the State
Government employees making suitable amendment of Odisha
Service Code and on a bare perusal of the said Annexure-2, it can
be seen that the same was directed to be implemented with
immediate effect.
4. On 13.08.2014, the Managing Committee of the Berhampur Co-
operative Central Bank Ltd., Berhampur as per resolution No.1
resolved to request the Registrar Co-operative Society, Odisha,
Bhubaneswar, to accord necessary approval for implementation
of the enhancement of the retirement age of Berhampur Co-
operative Central Bank Ltd., Berhampur employees from 58 to
60 years.
5. In the said resolution, which is at Annexure-3, the Chief
Executive of the Bank was authorized to have correspondence in
this regard with the Registrar Co-operative Society, Odisha,
Bhubaneswar.
6. It is on record that the Registrar Cooperative Society took a
decision on 29.09.2014 in exercise of power under Section 33-A
of the OCS Act, 1962 to enhance the retirement age in respect of
employees of all the Co-operative Society excepting the
employees of the Co-operative Societies as at serial No.3 of the
said order.
7. The order of the Registrar Co-operative Society (Opposite Party
No.2) dated 29.09.2014 is extracted hereunder:-
"OFFICE OF THE REGISTRAR COOPERATIVE SOCIETIES, ODISHA,
BHUBANESWAR
xxx xxx xxx
WHEREAS, movement in Cooperation Department in
their Letter No.7531 dated 26.09.2014 interalia have intimated
that in the meantime Government have been pleased to order
that MoU for revival of Short Term Cooperative Credit
Structure (STCCS) was executed with Government of India
and NABARD; and
2. WHEREAS, in the said letter it has also been held that on
the basis of the MoU, the OCS Act was amended to bring in
required legal reforms for the STCCS; and
3. WHEREAS, it has further been held in the said letter that
as per the amended provision of the OCS Act, the Registrar
of Cooperative Societies, Odisha is to finalise the service
condition of the Staff of Credit Cooperative Societies (OSCB,
DCCB and PACS) in consultation with NABARD; and
4. WHEREAS, it has been decided by the Government that in
respect of all other Cooperatives the retirement age limit be
enhanced to 60 years;
5. NOW THEREFORE, in exercise of power u/s.33-A of the
OCS Act, 1962, I Sri Dhiren Kumar Pattnaik, IAS, Registrar of
Cooperative Societies, Odisha do hereby enhance the
retirement age to 60 years in respect of employees of all the
Cooperative Societies excepting the employees of the
Cooperative Societies as at Sl. No.3 above and the order
issued earlier in this context is modified to the above extent
only.
xxx xxx xxx
Registrar
Cooperative Societies, Odisha"
(Emphasized)
8. On a bare perusal of the said order, it can be seen that the
decision was taken to enhance the retirement age to 60 years of
employees of all the Co-operative Societies excepting the
Cooperative Societies at serial No.3 i.e. Staff of Credit
Cooperative Societies (OSCB, DCCB and PACS) pending
consultation with NABARD.
9. It is the grievance of the petitioner that though ultimately the
retirement age of employees of Co-operative Central Bank was
enhanced to 60 years but the same was made effective from
31.10.2014, for which he was deprived of the said extension of
age of retirement from 58 to 60 years, since he retired with effect
from 31.08.2014.
10. It is the submission of the learned counsel for the petitioner that
the action of the authorities in implementing the enhancement of
age of Central Co-operative Bank with effect from 31.10.2014 is
per se arbitrary in view of the resolution of the Finance
Department enhancing the age of the Government employees
from 58 to 60 years with effect from 28.06.2014.
11. It is submitted with vehemence that there is no rationale in
treating the employees of the Central Co-operative Bank
differently in view of the resolution of the Government even
otherwise, it is submitted that since the Registrar Co-operative
Society has taken the decision to enhance the retirement age of
the Co-operative employees depriving the employees like the
petitioner who have been working in Credit Co-operative Society
from such enhancement of retirement age from 58 to 60 year, is
per se arbitrary inasmuch as a homogenous class of Co-operative
employees have been treated in a different manner.
12. To fortify his stand, learned counsel for the petitioner relied on
the judgment of this Court in the case of Premalata Panda Vs.
State of Odisha reported in 2015 (2) CLR 914.
13. Learned AGA, Mr. S.N. Pattnaik appearing for the State opposed
the prayer of the petitioner inter alia submitting that ex-facie the
petitioner is not similarly circumstanced with the State
Government employees, as such question of discrimination does
not arise.
14. A counter affidavit has been filed by the Secretary, Berhampur
Central Co-operative Bank-Opposite Party No.4, controverting
the allegations made.
15. At this stage, it is apt to make a reference to the Central Co-
operative Bank, Staff Service Rules, 2011, which is admittedly
applicable to the employees of the Central Co-operative Bank in
the State like the petitioner.
16. Rule-39 of the Central Co-operative Bank Staff Service Rules,
2011 deals "with retirement of services". The relevant clause of
the said rule is extracted hereunder:-
"39. Retirement of service:
The age of retirement of the employees working in the Bank
will be as follows:-
A.1. The date of retirement of an employee other than the
Support Staff working in a Bank is the date on which he or
she attains the age of 58 years. The date of retirement of
Support Staff will be the date on which he or she attains the
age of 60 years. Provided that the last day of the month shall
be date of superannuation notwithstanding he/she attains the
age of superannuation on any day during the same month. If
the date of retirement falls on 1st day of the month, the
incumbent will retire in the last day of the preceding month.
(Emphasized)
xxx xxx xxx"
17. On a bare perusal of the order issued by the Registrar Co-
operative Society dated 29.09.2014 at Annexure-8, it can be seen
that while enhancing the retirement age of the employees of the
Co-operative Society from 58 to 60 years in terms of the decision
taken by the Government, the same was deferred in respect of
staff of Credit Co-operative Societies, like the present one, in
which the petitioner was admittedly an employee, for
consultation with the NABARD, as evident from the
communication dated 31.10.2014 of the Registrar of Co-
operative Societies, Odisha.
18. The same is annexed as Annexure-10 and also relied upon by the
Opposite Party No.4 as Annexure-D/4.
19. And, it was decided to enhance superannuation age of the
employees of the Central Co-operative Banks from 58 to 60
years by carrying out necessary amendment of the Rules. The
resolution passed by the Steering Group constituted by the
Government in their meeting dated 29.10.2014, which has been
reflected in the order of the Registrar of Cooperative Societies
dated 31.10.2014 is extracted hereunder:-
"xxx xxx xxx
a) To enhance the superannuation age of the
employees of Central Cooperative Banks from 58
years to 60 years and to amend the Rules i.e. exercise
of statutory powers;
b) To amend the staff service rule of the Odisha State
Coop Bank to enhance the age of the superannuation
employees from 58 years to 60 years and to amend
the Staff Service Rules of the OSCB accordingly in
exercise of statutory powers;
c) To amend the staff service rules of PACS &
LAMPCS to enhance the superannuation age from 58
years to 60 years in respect of the employees of PACS
& LAMPCS and to amend the Staff Service Rules in
exercise of the statutory power; And
Whereas, the said decision has been
communicated by the Govt, Cooperation Deptt. in
their letter No.8267 dated 30.10.2014.
xxx xxx xxx"
20. It is thus manifestly clear on a bare perusal of the said
communication of the Registrar Co-operative Societies dated
31.10.2014, that in exercise of power conferred under Section 33-
A of the OCS Act, 1962, the retirement age in respect of
employees of the Cooperative Credit Societies was enhanced to
60 years and it was further observed that the respective rules
governing the service conditions of the aforesaid employees are
also modified to such extent and the modified rules were directed
to be incorporated at the appropriate place of the respective
clauses of the relevant Rules and it is also stated that such
enhancement of age from 58 to 60 years in respect of employees
of Co-operative Credit Societies shall come into force with
immediate effect from 31.10.2014.
21. The relevant paras of the said communication of the Registrar,
Cooperative Societies dated 31.10.2014 is extracted hereunder
for convenience of ready reference:
"xxx xxx xxx
Now, therefore, in exercise of power U/s.33-A
of OCS Act, 1962, I Sri Dhiren Kumar Pattanaik,
IAS, Registrar, Cooperative Socieities, Odisha, do
hereby enhance the retirement age to 60 years in
respect of employees of the Cooperative Credit
Societies (OSCB, DCCB, LAMPCS, PACS (SCS
and FSCS).
The respective rules governing service
condition of the aforesaid employees are
modified to the above extent only. This order be
reflected in the appropriate place of the
respective clauses of the relevant Rules.
This order shall come into force with
immediate effect."(Emphasized)
22. It is submitted by the learned counsel for the Opposite Party No.4
that after consultation with the NABARD, Registrar Co-
operative Society issued the letter enhancing the age of
retirement to 60 years with effect from 31.10.2014 suitably
modifying the rules relating to enhancement of age of retirement
and admittedly the petitioner having retired on 31.08.2014,
cannot claim the benefit of extended age of retirement from 58 to
60 years retrospectively.
23. It is further stated on behalf of Opposite Party No.4 that in terms
of the relevant Rules relating to age of retirement, which were
extracted hereinabove, the petitioner retired on attaining the age
of 58 years.
24. As the petitioner retired during the currency of the said Rules, his
claim to continue till 60 years is untenable as the amendment to
the said Rules was only brought into effect from 31.10.2014 by
virtue of the order/communication of the Registrar, Cooperative
Societies hereinabove adverted to.
25. On a conspectus of materials on record, it is not in dispute that
the petitioner is an employee of Co-operative Credit Society and
is governed by the Central Co-operative Bank Staff Service
Rules, 2011 as quoted hereinabove. The said Rules prescribed the
retirement age of the employees like the petitioner as 58 years, on
the date of retirement of the petitioner as noted above.
26. The said Rule was amended with effect from 31.10.2014 as per
the direction of the Registrar Co-operative Society. Admittedly,
there being no amendment of the Rules governing the field
retrospectively and the petitioner as a member of the Central
Cooperative Society was a class by himself.
27. And, his claim to be treated at par with Government employees
and the further submission of the learned counsel for the
petitioner that employees of all the Co-operative Society form a
homogenous class is untenable as there is intelligible differentia
to treat the employees of Central Co-operative Services like the
present petitioner differently in the context of the rules governing
the field and same relating to the age of retirement with effect
from 31.10.2014.
28. Hence, the contention that equals have been treated unequally
does not stand to reason.
29. The judgment cited by the learned counsel for the petitioner in
the case of Premalata Panda Vs. State of Odisha (Supra) is
not applicable in the factual matrix of the case at hand.
Inasmuch as, on a bare perusal of the said judgment, it
is seen that Premalata Panda-petitioner therein, was an employee
of Cuttack Development Authority (CDA).
30. This Court on an analysis of the materials on record came to the
finding that since CDA had no independent rules regarding the
service condition of its employees, were governed by Orissa
Service Code (OSC).
As such amendment to Rule 71(a) of OSC,
enhancing/revising the age of retirement from 58 to 60 years was
held to be ipso facto applicable from the date, from which such
benefit was extended to others who are regulated by the OSC.
30(A). While, in the case at hand admittedly there are distinct rules
governing service conditions of the petitioner, as already noted.
31. Learned counsel for the Opposite Party No.4 has relied on the
judgment of the Apex Court in the case of State of Punjab v.
Boota Singh reported in (2000) 3 SCC 435 wherein the Apex
Court has held that the benefit conferred by a particular
Notification can only be claimed by those who retire after the
date stipulated in the notification and those who have retired
prior to the stipulated date in the notification are governed by
different rules, i.e. they are governed by the old rules i.e. the
rules prevalent at the time when they retire.
It was further held that as the two categories of persons
are governed by different sets of rules, they cannot be equated
and that the grant of additional benefit has financial implications
and the specific date for the conferment of additional benefits
cannot be considered arbitrary.
32. Law is no longer res integra that in the matter of enhancement
age of superannuation, the power of the Court is limited. Only
when such enhancement is effected without any rationale, Courts
can step in.
33. In this context, reliance is placed on the judgment of the apex
Court in the case of New Okhla Industries Development
Authority and Others Vrs. B.D. Singhal and Other reported in
AIR 2021 SC 3457.
34. Paragraph-19 of the said judgment, which is of relevance, is
quoted hereunder.
"19. Whether the age of superannuation
should be enhanced is a matter of policy.
If a decision has been taken to enhance
the age of superannuation, the date with
effect from which the enhancement should
be made falls within the realm of policy.
The High Court in ordering that the
decision of the State Government to
accept the proposal to enhance the age of
superannuation must date back to 29 June
2002 has evidently lost sight of the above
factual background, more specifically (i)
the rejection of the original proposal on
22 September 2009; and (ii) the judgment
of the Division Bench dated 17 January
2012 refusing to set aside the order
rejecting the proposal on 22 September
2009 which has attained finality. But
there is a more fundamental objection to
the basis of the decision of the High
Court. The infirmity in the judgment lies
in the fact that the High Court has
trenched upon the realm of policy making
and has assumed to itself, jurisdiction
over a matter which lies in the domain of
the executive. Whether the age of
superannuation should be increased and
if so, the date from which this should be
effected is a matter of policy into which
the High Court ought not to have
entered." (Emphasized)
35. On a conspectus of materials on record, taking into account that
the petitioner retired from service on 31.08.2014 on attaining the age of
superannuation of 58 years as per the relevant Rules governing the field
and the enhanced retirement age having came into effect from
31.10.2014, on suitable amendment being made to the service rules,
cannot thus be made retrospectively applicable to the petitioner.
36. As such, the prayer of the petitioner does not merit consideration
and accordingly, the same stand rejected.
37. No costs.
( V.Narasingh )
Judge
Orissa High Court, Cuttack,
Dated the, 15th November, 2022/Ayesha
