IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2299 of 2010 MAHESH PRASAD SHARMA S/O LATE SAHDEO SHARMA R/O VILL. KUTRI, POST- NARO MURRAR, P.S.- WARSALIGANJ, DISTT.- NAWADA Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPTT. OF COOPERATIVE, GOVT. OF BIHAR, PATNA 2. BIHAR STATE COOPERATIVE MARKETING UNION LTD., BISCOMAUN BHAWAN, PATNA THROUGH ITS SECRETARY 3. MANAGING DIRECTOR, BIHAR STATE COOPERATIVE MARKETING UNION LTD., BISCOMAUN BHAWAN, PATNA For the Petitioner :- Mr. Abhinav Shrivastava, Advocate. For the BISCOMAUN :- Mr. Vikas Kumar, Advocate. ----------- 04. 29.03.2010 Heard learned counsel for the petitioner and the Bihar State Cooperative Marketing Union Limited(hereinafter referred to as the “BISCOMAUN”) who has filed counter affidavit in which besides refuting the prayer of the petitioner on merits has also raised the preliminary objection that the writ application against BISCOMAUN is not maintainable as it is a society constituted under the Bihar Cooperative Societies Act, 1935. 2. From perusal of the writ application as also the submissions made before the Court, it is evident that this application has been filed for a direction to the authorities of the BISCOMAUN to comply the orders of this Court dated 22.6.2009, Annexure-3, whereunder this Court made declaration in rem that the age of superannuation of the employees of the BISCOMAUN is 60 years in the light of the resolution dated 2.11.2007, Annexure-1 of its Board of Directors, which was taken in the light of the decision of the State Government to enhance the age of superannuation of the employees of the Cooperative Societies from 58 to 60 years dated 15.5.2006. In the light of the aforesaid orders of this Court dated 22.6.2009, Annexure-3, petitioner who superannuated with - 2 - effect from 31.3.2009 in compliance of the orders of the BISCOMAUN dated 5.2.2009, Annexure-2 made representation dated 30.6.2009, Annexure-4 calling upon the authorities of the BISCOMAUN to permit him to resume duties in the light of the orders of this Court dated 22.6.2009, Annexure-3 but the said representation was not considered and he filed the present writ application on 8.2.2010. In view of the facts states above there is not difficulty in concluding that the instant writ application is maintainable before this Court. 3. With the counter affidavit counsel for the BISCOMAUN has annexed the order of the Administrator of BISCOMAUN dated 30.7.2009, Annexure-A, whereunder the age of superannuation of the employees of the BISCOMAUN was extended from 58 to 60 years in compliance of the orders of this Court dated 22.6.2009, Annexure-3 with immediate effect. The correctness of the aforesaid order dated 30.7.2009 was considered by this Court in C.W.J.C. No.14312 of 2008 under order dated 17.9.2009, Annexure-B in which this Court observed as follows :- “In view of the judgment of this Court, it is clear that what this Court said was that once the Board of Directors had taken the decision on 2.11.2007, it was effective immediately. Thus none of the petitioners could have retired nor could the Managing Director restricts the operation of the judgment of this Court and make operative from 30.7.2009. The Administrator/Managing Director cannot sit in appeal or in judgment over judgment and order of this Court” 4. Learned counsel for the BISCOMAUN, however, submitted with reference to the aforesaid order dated 17.9.2009, 18.9.2009 and 18.2.2010 passed in C.W.J.C. Nos.14312 of 2008, 10744 of 2009 and 690 of 2010, Annexures- B, C and D that the benefit of the extended - 3 - age of retirement was allowed to only those who approached this Court prior to their retirement or filed their representation prior to the retirement but as the petitioner accepted his retirement in compliance of the order dated 5.2.2009, Anneuxre-2 with effect from 31.3.2009 he could not be allowed benefit of the orders of this Court dated 22.6.2009, 17.9.2009, 18.9.2009 and 18.2.2010, Annexure-3, B, C and D. 5. I regret not to accept the submission of the counsel for BISCOMAUN in view of the clear declaration made by this Court under order dated 17.9.2009, Annexure-B that once the Board of Directors of BISCOMAUN passed resolution dated 2.11.2007, Annexure-1 it became effective immediately and none of its employees could have been allowed to retire without attaining the age of 60 years as the decision of the Board of Directors of the BISCOMAUN dated 2.11.2007 was in the light of the decision of the State Government in terms of Section-66B of the Bihar Cooperative Societies Act, whereunder the State Government itself permitted the Cooperative Societies to enhance the age of superannuation of its employees from 58 to 60 years. 6. Petitioner approached this Court on 8.2.2010, as such, the authorities of the BISCOMAUN are directed to reinstate him and grant continuity of service with effect from 31.3.2009 but arrears of salary be paid to him with effect from 8.2.2010. 7. This writ application is, accordingly, disposed of. AFR Rajesh/ (V.N.Sinha, J.)