IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Writ Petition No.1208 of 2005. Judgment Reserved on: 24.11.2008 Date of decision: 18.12.2008. Mohar Singh …Petitioner Versus State of H.P. & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Petitioner: Mr.Ajay Sharma, Advocate. For Respondents 1 & 2: Ms.Ruma Kaushik, Additional Advocate General. For Respondent No.3: Mr.B.S. Ranjan, Advocate. Dev Darshan Sud,J. This writ petition has been preferred by the petitioner who was in the employment of respondent No.3 as a driver. The petitioner challenges the order passed by the Principal Secretary(Cooperation) to the Government of Himachal Pradesh on 18.10.2005 rejecting the prayer of the respondent herein that he be retained in service up to his attaining the age of 58 years. 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 The petitioner herein filed a review petition under Section 94 of the Himachal Pradesh Cooperative Societies Act, 1968, (hereinafter referred to as the `Act’), against the order Annexure P-3 passed by the Chairman of respondent No.3 on 5th September, 2005 stating that according to the record maintained by the Federation, the petitioner who was serving with the Registrar, Cooperative Societies, at the relevant time, would complete his full tenure of 30 years of service on 30.9.2005 and therefore, in terms of amended clause-10 of the Service Rules of the employees of respondent No.3 he is to retire from service on that date. A number of grounds were taken in the review petition under Section 94 of the Act preferred by the petitioner herein. In ground No.4 he has urged that vested rights of the petitioner have been taken away with retrospective effect which act is illegal and unconstitutional. He had an indefeasible and vested right to have continued in service up to the age of 58 years as the conditions of service are to be governed by the Rules in vogue at the time of his recruitment. He pleads that this right has accrued to him which cannot be altered to his disadvantage. Section 94 of the Act provides that the State Government may, except in an appeal under Section 93 of the Act, call for and examine the 3 record of any inquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or acting on his authority, and may pass thereon such orders as it thinks fit. Section 94 of the Act reads: “94. Review and Revision:-(1) The State Government except in a case in which an appeal is preferred under section 93 may call for and examine the record of any inquiry or inspection held or made under this Act or any proceedings of the Registrar or of any person subordinate to him or acting on his authority, and may pass thereon such orders as it thinks fit. (2) The Registrar may at any time:- (a) review any order passed by himself; or (b) call for and examine the record of any inquiry or inspection held or made under this Act or the proceedings of any person subordinate to him or acting on his authority and if it appears to him that any decision, order or award or any proceedings so called or should for any reason be modified, annulled or reversed, may pass such order thereon as he thinks fit; [“Provided further that every application under sub-section (1) and (2), to the State Government or the Registrar, as the case may be shall be made within ninety days from the date 4 of the communication of the order sought to be reviewed or revised.”] The section empowers the State Government and the Registrar to review and revise certain orders or proceedings made or held under this Act.” Reading of this provision shows that the order Annexure P-3, which was passed by the Chairman of the Society, does not fall within the purview of this provision as it was not passed in any proceedings by the Registrar or by a person subordinate to him or acting on his Authority. So far sub-section (2) is concerned; it deals with the powers of the Registrar. However, rather than dismissing the petition on this ground, I have heard learned counsel for the parties. Learned counsel for the petitioner urges that in the absence of proof of the Rules in vogue at the time of his recruitment, he was to retire at the age of 58 years like other employees in the Cooperative Societies. Annexure P-2 with the writ petition is annexed as a copy of the old Rules which came into force on 14.12.1958. He submits that no approval to these Rules has been obtained from the Registrar and therefore his services cannot be dispensed with in accordance with these rules. This submission need not detain this Court any further. Respondent No.1 has in its reply 5 categorically stated that these Service Rules were not available in the record of the Federation/Registrar as all the records were gutted in fire which broke out in Kennedy House building in the year 1976, where the office of respondent No.1 was situated. If that be the position, the submission of the petitioner would be that there are no Service Rules governing his service and he should be superannuated in accordance with the Rules applicable to the other Cooperative Societies and his claim for retirement at the age of 58 years is justified. This submission cannot be accepted as the Rules applicable for other Cooperative Societies cannot be made applicable in the case of the petitioner. Though the review, not competent before the Secretary(Cooperation), the claim of the petitioner was examined by him. He holds that under the un-amended Rules an employee would retire at the age of 58 years or 30 years of service whichever is earlier, provided that the Board may in their discretion extend the period of service of the employee beyond 30 years up to the age limit of 60 years if the employee is considered physically and medically fit to discharge his duties efficiently. The appointment order of the petitioner Annexure P-1 only states that his appointment is purely on temporary basis and is liable to be terminated at any time without assigning any reason. 6 There is no writing on the record to establish that there was any assurance to the petitioner that he would be superannuated at a particular age. Even otherwise, having put in 30 years of service, the petitioner cannot claim an indefeasible right to continue in service beyond that period. There is nothing on the record to show that any assurance was held out to the petitioner that he would be retired at the age of 58 years only and not at an earlier point of time. Petitioner also places reliance on his rejoinder to assert that the other employees have been allowed to continue beyond the age of 58 years and that his age should also be extended. This submission also cannot be accepted. Alongwith the rejoinder the petitioner has appended a list of employees who, according to him, retired at the age of 58 years. This is not correct as two of the employees’ S/Shri Kundal Lal Kalyani and Mohan Lal have superannuated at the age of 55 years and 56 years respectively which would also go to show that there was no consistent practice to retire an employee in 58 years of age. At the cost of repetition it may be noted that nobody has a right to continue in employment indefinitely. Even if the contention of the petitioner is accepted that there are no Rules governing his service, the age of superannuation of 58 years cannot be accepted. 7 The petition only seems to have been filed by the petitioner taking advantage of the fact that the original records of the respondents have been gutted in fire. There is no merit in this petition. The petition is dismissed. There shall be no order as to costs. December 18, 2008. (Dev Darshan Sud) (aks) Judge.