IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.794 of 2010 Against the judgment and order dated 29.3.2010 passed in C.W.J.C.No.2299 of 2010 passed by learned Single Judge of this Court .... 1. Bihar State Co-Operative and Marketing Union Ltd. Biscomaun Bhavan, Patna through its Secretary 2. Managing Director, Bihar State Co-operative Marketing Union Ltd. Biscomaun Bhawan, West Gandhi Maidan, Patna …….Appellants Versus 1. Mahesh Prasad Sharma Sharma son of Late Sahdeo Sharma, resident of Village-Kutri, P.O. Naro Murrar, P.S. Warshaliganj, Distt- Nawada 2. The State of Bihar through the Principal Secretary, Department of Co-operative, Government of Bihar, Patna …….. Respondents ----------- For the Appellants : Mr. Vikash Kumar, Advocate For Respondent no.1: Mr.Abhinav Shrivastava, Advocate For the State : Mrs. Shail Kumari, SC 15 .............. P r e s e n t The Hon’ble Mr. Justice Sudhir Kumar Katriar The Hon’ble Mr. Justice Samarendra Pratap Singh SK Katriar,J Heard Mr. Vikash Kumar for the appellant, Mr. Abhinav Shrivastava for respondent no.1, and Mrs. Shail Kumari, SC 15, for respondent no.2.This appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna has been preferred by respondent nos.2 and 3 of C.W.J.C.No.2299 of 2010, whereby the writ petition has been allowed, and it has been held that the writ petitioner (respondent no.1 herein) is entitled to 2 the benefit of enhancement of retirement age to 60 years with consequential benefits. 2. A brief statement of facts essential for disposal of the appeal may be indicated. We shall go by the description of the parties occurring in the present memorandum of appeal. Appellant no.1 is a Cooperative Society registered under the provisions of the Bihar State Cooperative Societies Act, 1935. Respondent no.1 was one of its employees who attained 58 years of age on 31.3.2009. 2.1 The Government of Bihar by its decision dated 24.3.2005, enhanced the age of superannuation of its employees from 58 to 60 years. This led to demands from the various public sector undertakings and various other organizations functioning under the aegis of the Bihar Government for the same benefit. Government of Bihar, in the Cooperative Department, issued letter no.1305, dated 15.5.2006, to the appellant no.1, to enhance the age of superannuation of its employees to 60 years. The same was considered by its Board of Directors in its meeting held on 2.11.2007, and the following resolution was passed: 3 Þ6- fcLdkseku dfeZ;ksa dh lsok fuo`fr mez lhek 58 o’kZ ls c<+kdj 60 o’kZ djus ds laca/k esaA jkT; ljdkj ds dkfeZ;ksa dh Hkakfr foLdkseku dkfeZ;ksa dh lsok fuo`fr mez lhek 58 o’kZ ls c<+kdj 60 o’kZ djus ds Øe esa lgdkfjrk foHkkx ds i= la0 1305 fnukad 15-5-06 }kjk fuxZr foHkkxh; vkns”k ds vkyksd esa fcLdkseku dh orZeku fo”ks’k fLFkfr dks ns[krs gq, jkT; ljdkj dh vuqefr@lgefr ls fcLdkseku ds dkfeZdksa dh lsok fuo`fr mez lhek 58 o’kZ ls c<+kdj 60 o’kZ fd;s tkus dk fu.kZ; fy;k x;kA bl laca/k esa vko”;d dkjZokbZ djus gsrq izcU/k funs”kd dks vf/kd`r fd;k x;kAÞ The Managing Director did not take the requisite steps to implement the aforesaid resolution leading to C.W.J.C.No.5387 of 2009, which was allowed by a learned Single Judge of this Court by order dated 22.6.2009, wherein it was held that the appellants are bound to implement the aforesaid resolution dated 2.11.2007, which has attained finality. No appeal was filed against the order in the C.W.J.C.No.5387 of 2009, and the appellant instead implemented the resolution of the Board of Directors, vide order dated 30.7.2009, the text of which is reproduced herein below: Þlh0MCyw0ts0lh la[;k 5387@09 esa fnukad 22-6-2009 dks ekuuh; mPp U;k;ky; }kjk ikfjr vkns”k ds vuqikyu esa fcLdkseku dkfeZdksa dh lsok&fuo`fr dh vk;q lhek 58 o’kZ ls c<+dkj 60 o’kZ dh tkrh gSA ;g vkns”k rRdky ds izHkko ls ykxw gksxkAÞ 2.2 This was followed by C.W.J.C. No.2299 of 2010, 4 seeking the benefit of the aforesaid order dated 30.7.2009 of this court, which has been allowed and it has been directed that the writ petitioner (respondent no.1 herein) is entitled to the benefit of retirement on completion of 60 years. 3. Learned counsel for the appellants assails the order of learned Single Judge on the ground that the order dated 30.7.2009 under the signature of respondent no.2, has been issued with immediate effect. Respondent no.1 had already superannuated on 31.3.2009, and, therefore, he is not entitled to the benefit thereunder. He next submits that respondent no.1 was not vigilant of his rights, has approached the court late, and is not entitled to the benefit for enhancement of retirement age. He also relies upon the decision of the Supreme Court in the case of U.P. Jal Nigam and another v. Jaswant Singh and anr, reported in (2006)11 SCC 464. He also submits that the appellant is not ‘State’ within the meaning of Article 12 of the Constitution of India and, therefore, the writ petition is not maintainable. He further submits that the Board’s resolution dated 2.11.2007, needed concurrence of the State Government which has not so far been 5 obtained. Learned counsel for respondent no.1 has supported the order on the writ petition. Learned SC 15 supports the appellants. 4. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It appears to us that the State Government, in the Cooperative Department, issued letter no.1305 dated 15.5.2006, granted approval to enable the appellants to enhance the retirement age of its employees from 58 to 60 years. This led to the aforesaid resolution dated 2.11.2007, of the Board of Directors. We are of the view that the resolution was passed after obtaining prior approval of the State Government which is manifest from the language and tenor of the resolution. It is evident on perusal of the same that the Board of Directors passed the resolution in pursuance of the letter of the State Government, decided to enhance the retirement age of its employees, and directed its Managing Director to take necessary steps. The resolution suffered inaction leading to the aforesaid C.W.J.C.No.5387 of 2009, which was allowed, was not challenged before a higher forum, and 6 was implemented by the aforesaid order dated 22.6.2009 stating therein that “;g vkns”k rRdky ds izHkko ls ykxw gksxk “ 5. It is thus evident that the appellants have finally implemented its resolution enhancing the retirement age of its employees from 58 to 60 years after obtaining prior concurrence of the State Government. This, however, does not conclude matters. Primary question for consideration is the date from which the resolution shall be implemented, namely, w.e.f. 2.11.2007 or 30.7.2009.We are of the view that the decision to enhance the retirement age of its employees became effective w.e.f.. 2.11.2007, the date on which the Board of Directors passed its resolution enhancing the age of retirement. We say so in view of the language and tenor of the resolution extracted hereinabove, and also for the reason that the Board of Directors authorised its Managing Director to take necessary steps for its implementation. As a dutiful servant of appellant no.1,, he was duty bound to carry out the resolution of the Board of Directors promptly and with effect from the date of the resolution, but he completely failed to discharge this part of his duty and function. The employees cannot be 7 allowed to suffer on account of inaction of functionary of appellant no.1. His inaction led to C.W.J.C.No.5387 of 2009, which was allowed, and the order of this court was implemented. The Managing Director once again made the error incorporating the clause “;g vkns”k rRdky ds izHkko ls ykxw gksxk “ in his order. We set aside the same and substituted by our order that the same, and directed that the order shall be implemented w.e.f. 2.11.2007, the date on which the Board of Directors passed the resolution. 6. We now consider the preliminary objection raised on behalf of the appellants that the writ petition is not maintainable because it is not ‘State’ within the meaning of Article 12 of the Constitution. The contention has to be rejected, inter alia, for the reason that a Division Bench of this court held in the case of Nand Kishore Rai & Ors v. The State of Bihar & Ors, reported in 1988 PLJR 1065, that if BISCOMAUN is in a state of supersession and it affairs are being handled by the Administrator appointed by the State Government, then it is ‘State’ during that period. We take judicial notice of the position that the Board of Directors of BISCOMAUN is on and off is superseded by the State Government, and is placed under 8 the administration of the Administrator nominated by the State Government, who is invariably a functionary of the State Government. If it is held that the writ petition is not maintainable, then it would create anomalous situations. The Board of Directors may be in a State of supersession and the writ petition during that period may be maintainable, the writ petition may not be maintainable the following day when the State of supersession is over. Secondly, we also take judicial notice of the position on the basis of the pattern of litigations coming before this court that the State Government is taking various effective steps to improve the functioning of BISCOMAUN, inter alia, by financial grants. This court is entertaining hundreds of writ petitions regarding payment of salary, post-retirement benefits, etc. of its employees. Indeed the present resolution dated 2.11.2007 is itself based on the decision of the State Government. 7. We are mindful of the legal position that no plaintiff, petitioner, or appellant can be worse off than the impugned judgment. However, this principle of law is not applicable to the discretionary, prerogative writ jurisdiction where interest of justice is of paramount 9 Patna High Court April 22nd, 2011 KHAN/NAFR consideration. We say so for the reason that the appellants make a grievance that the appellant is now worse off than the order of learned Single Judge because the learned Single Judge has not given the benefit to all the employees of the appellants who have superannuated on or after 2.11.2007. Refusal to recognize this will only result in a spate of writ petitions in this court. 8. In the result, this appeal is dismissed. Respondent no.1 shall be entitled to the benefit of superannuation on completion of 60 years of age with all consequential benefits. We further make it clear that this order is general in nature, and the benefits of this judgment shall be made available to all the employees who have superannuated on or after 2.11.2007, without burdening this court with unnecessary writ petitions. The resolution of the Board of Directors alters the general terms and conditions of service of its employees and, therefore, of universal application. There shall be no order as to costs. (S.K. Katriar,J) S.P.Singh,J I agree (S.P. Singh,J) 10