IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14786 of 2007 KAROO PANDIT Versus THE STATE OF BIHAR & ORS ----------- CWJC No.2667 of 2008 MOKHTAR SINGH & ORS Versus THE STATE OF BIHAR & ORS ----------- For the petitioners: Mr L.K.Yadav, Advocate For the State : Junior Counsels to GP IV and GP IX For the Bank : Mr K.K.Sinha, Advocate ------ 5. 24.09.2008 Heard leaned Counsels for the petitioner, the State respondents and for private respondents 4 and 5. The petitioners seek certiorari for quashing of the order dated 9.7.2007 issued by respondents 4 and 5 for superannuation of the petitioner on 31.7.2007 after having attained the age of 58 years. Consequential mandamus is sought to allow the petitioner to continue in service till the age of 60 years by enhancement of age of superannuation in like terms as has been done by the State Government. The stress of the argument is on an order dated 15.5.2006 of the Commissioner cum Secretary of the Department of Cooperative under Section 66B of the Bihar and Orissa Cooperative Societies, Act, 1935. That respondents 4 and 5 initially acted on the same by their resolution dated 4.7.2007 but subsequently rescinded the same by not confirming it in the next Board meeting on 28.8.2007. Learned counsel for the petitioner has relied upon 2007 (3) PLJR 830 (Shyam Kishore Sinha Vs State of Bihar & ors.) in which the order dated 13.5.2006 (referred to in the judgement as 15.5.2006 from the date of issuance of the order) in support of his submissions. Learned Counsel for respondents 4 and 5 urged that the order dated 13.5.2006 left the issue for enhancement of age as policy matter to the Banks in question to be considered on fulfillment of the condition made in the recommendation. That respondents 4 and 5 do not fulfill the same has been adequately explained in their counter affidavit Learned Counsel for the State questioned the maintainability of the writ application filed against a private Bank merely registered under the Bihar and Orissa Cooperative Societies Act. He relied upon a Bench decision of this Court in 2001(2) PLJR 253 (S. Itrat Hussain Vs Registrar, Co-operative Societies, Bihar, Patna & ors.) The issue of enhancement of the retirement age are primarily policy matters to be determined by the employer on whom the burden of continuing to pay salary and other service benefits consequent to the enhancement of the age of retirement would fall. This Court on a bare reading of the order dated 13.5.2006/15.5.2006, strenuously relied upon by the petitioner has no hesitation in holding that it has no statutory binding force but is merely in the nature of a recommendation. In the very opening paragraph it itself acknowledges that the responsibility for payment of salary etc shall that of the concerned Cooperative Society and therefore its financial capability and other things shall have to be kept in mind by it while taking such a decision. Once respondents 4 and 5 have filed a counter affidavit that they are not fulfilling the conditions, and the recommendation is not binding on them, there is little scope to interfere. If the employer is not desirous to enhance the age of retirement for specified reasons, the decision cannot be thrust upon the employer. This Court does not hold that the government letter dated 13.5.2006/25.5.2006 is a statutory order under Section 66B binding on the private Cooperative Bank so as to maintain a writ application. The provisions of Section 66B of the Bihar and Orissa Cooperative Societies Act, with regard to the powers of the State respondents in this regard are akin to Rule 33 of the Bihar and Orissa Cooperative Societies Rules. In the case of S. Itrat Hussain (Supra) relied upon by the respondent Bank, a Bench of this Court has clearly held that a writ petition would not lie against private Cooperative Society even if any direction had been issued in pursuance of Rule 33 of the Bihar and Orissa Cooperative Societies Rules unless and until affairs of the society was controlled by the State Government so as to make it as an instrumentality of the State. This aspect of the matter does not appear to have come up for consideration in the case of Shyam Kishore Sinha (Supra) relied upon by the petitioner when the Court proceeded on the assumption in paragraph 11 that the order dated 13.5.2006/15.5.2006 had a binding statutory force. This Court finds no merit in this writ application and also upholds the objection on the issue of maintainability of the writ application. The same is accordingly dismissed. Snkumar/- (Navin Sinha,J.)