IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1045 of 2009 NAGNARAYAN SINGH, S/o Late Kalika Singh, Permanent resident of Village + P.O. : Tengraha, P.S. – Minapur, District – Muzaffarpur ………………………... Petitioner ……. Appellant Versus 1. THE STATE OF BIHAR, 2. The Commissioner-cum-Secretary, Co-operative Department, Government of Bihar, New Secretariat, Bailey Road, Patna, 3. The Registrar, Co-operative Society, Government of Bihar, New Secretariat, Bailey Road, Patna, 4. The Muzaffarpur Central Co-operative Bank Ltd., Muzaffarpur represented through its Managing Director, Central Co-operative Bank Ltd., Muzaffarpur and 5. The Managing Director, Muzaffarpur Central Co-operative Bank Ltd., Muzaffarpur ……………..…. Respondents … Respondents with LPA No.1208 of 2009 RAGHUNATH PRASAD SINGH, S/o – Late Jangbahadur Singh, Permanent resident of Village – Madhaipur, P.O. + P.S. – Siwaipatti, Via – Meenapur, Distt. – Muzaffarpur at present residing in the Mohalla and P.O. – Seikhpur, P.S. – Ahiyapur, Distt. – Muzaffarpur ………………….. Petitioner …. Appellant Versus 1. THE STATE OF BIHAR, 2 The Commissioner-cum-Secretary, Co-operative Department, Government of Bihar, New Secretariat, Bailey Road, Patna, 3. The Registrar, Co-operative Society, Government of Bihar, New Secretariat, Bailey Road, Patna, 4. The Managing Director, Muzaffarpur Central Co-operative Bank Ltd., Muzaffarpur ………………. Respondents … Respondents. ----------- For the Appellants in both appeals:- Mr. Shri Prakash Srivastava, Mr. Shyam Kishor Das and Mr. Santosh Bharti, Advocates. ------------ 2 2. 15.02.2010. Being grieved by the order dated 07.07.2009 passed by the learned single Judge in CWJC No. 15412 of 2008 along with CWJC No. 4580 of 2008, the present appellants have preferred these two appeals under Clause X of the Letters Patent. 2. Shorn of unnecessary details, the facts which are imperative to be exposited are that the appellants were the employees of Muzaffarpur Central Co-operative Bank which is a registered society under the Bihar Co-operative Societies Act, 1935 (for brevity `the Act’). The said Bank is a Central Co-operative Bank and as it did not frame its own rules, the State Government in exercise of powers conferred on it under Section 66(B) of the Act framed a set of Rules which was notified on 01.02.1994. Rule 21 of the Rules stipulated that the age of superannuation would be 58 years. As pleaded, the Board of Directors and the Central Co-operative Bank on 23.05.2005 took a decision to enhance the age of superannuation of the employees from 58 years to 60 years. The said decision was not applied to the case of the appellants-petitioners and the same compelled them to invoke the jurisdiction of this 3 Court under Article 226 of the Constitution of India for issue of a writ of mandamus. It was contended before the learned single Judge that as the Board of Directors had taken a decision, the same should have been given effect to and the appellants-petitioners should have been extended the benefit. The learned single Judge, as is manifest from the order, referred to Section 66(B) of the Act and eventually came to the opinion that the Co- operative Society could not have taken a decision to enhance the age of superannuation. The learned single Judge further opined that unless there is a decision of the Government the decision of the Board of Governors would not have been given effect to. He has also referred to the counter affidavit and held as follows: “…… In the counter affidavit, it has been pointed out that now on 26.12.2008 the State Government has taken a decision to permit enhancement of age of superannuation of the employees of the Central Co-operative Banks if they so decide and it is pursuant thereto on 05.01.2009 the Board of Directors of the Muzaffarpur Central Co-operative Bank took a decision to enhance the age of superannuation of its employees from 58 to 60. This decision of the Board of Directors has not been made retrospective. It would thus ordinarily be prospective in application. Petitioners already having superannuated long before this decision can not get advantage of this decision….” 4 3. In this context we may fruitfully refer to a recent decision of this Court rendered in The State of Bihar & Ors. V. Braj Mohan Prasad & Ors. (LPA No. 812/2009 and analogous cases, disposed of on 08.01.2010) wherein upon considering the statutory provisions of Section 42 of the Warehousing Corporation Act, 1962 requiring previous sanction of the appropriate Government as with regard to condition of service (which would include even the enhancement of age of retirement), it was held that the decision in that case of Bihar State Warehousing Corporation on its own without there being prior approval of the State Government for enhancing the age of retirement of the employees of the Bihar State Warehousing Corporation was not justified. In that context this Court in the case of Braj Mohan Prasad & Ors. (supra) has held as follows: “15. Quite apart from the above, if we appreciate Section 42 of the Act 58 of 1962, it is difficult to hold that the age of superannuation can be extended up to 60 years without approval of the State Government. If such a power is conferred on the Corporation, it would violate the mandate of Section 42 of the Act. 16. In course of hearing, Mr. Kumar has 5 recommended certain documents, by which the Board of Directors has recommended the State Government to grant permission for enhancing the age of superannuation from 58 years to 60 years commencing from 30th April, 2005. This has been done after the circular was issued. The said resolution has been passed after publication was made on 31.10.2008. 17. In view of the aforesaid, we are only inclined to direct the State Government to reconsider the matter for grant sanction with retrospective effect making a provision, if possible, with the notional benefit to the employees, who have suffered in the interregnum period from May, 2008 to 31st October, 2008. We reiterate we have left it to the discretion of the State Government. The action in this regard may be taken within three months.” 4. Thus, keeping in view the aforementioned ratio laid down by us in the case of Braj Mohan Prasad & Ors. (supra) we are of the considered opinion that the impugned judgment of the learned single Judge would require no interference save and except a slight modification in the operative portion. 5. In this context one has to note that even the learned single Judge has found that the employer of the writ petitioners, that is, Central Co-operative Bank in view of the approval accorded by the State Government by the letter dated 26.12.2008 permitting enhancement of the age 6 of superannuation to the employees of Central Co- operative Bank, has taken a decision on 05.01.2009 to enhance the age of superannuation of the employees of the Bank from 58 to 60 years with prospective effect. We have also noted that certain employees of the Central Co- operative Bank even though not legally entitled, in absence of approval of the State Government in terms of Section 66B of the Bihar Co-operative Societies Act, 1935, were held to be entitled for the benefit of enhancement of age for some period in between 15.05.2006 to 04.01.2009 by virtue of Government Resolution dated 15.05.2006. Thus, if the Bank in view of the ultimate approval given by the State Government on 26.12.2008 has finally given such benefit of extension of service to all the employees of the Bank with effect from 05.01.2009, the petitioners’ case for notional benefit as directed in the case of Braj Mohan Prasad & Ors. (supra) may also be considered along with other employees, who have suffered in the interregnum period from 23.05.2005to 04.01.2009. 6. We, however, would immediately clarify that we 7 have left it to the discretion of the State Government to take any decision in this regard but such decision must be taken within a period of three months from the date of receipt of certified copy of this order. Dilip ( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. )