1 SB Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Raj. & Ors. S.B. Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Rajasthan and others. Date : 29.4.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.Girish Sankhala, for the petitioner. Mr.Rajesh Joshi ) for the respondents Mr.IS Pareek ) - - - - - REPORTABLE Heard learned counsel for the parties. The petitioner was appointed on 21.4.1981 as Pharmacist with the respondent Sri Ganganagar Sahakari Upbhokta Wholesale Bhandar Ltd. and his date of birth is 2.5.1951. The petitioner is going to attain the age of superannuation i.e. 58 years on 2.5.2009. The Registrar, Cooperative Societies issued the order on 17.9.2008 (Annex.3) under Rule 39 of the Rajasthan Cooperative Societies Rules, 2003 (for short 'the Rules of 2003') whereby the societies in general have been directed to consider the matter regarding increase of age of 2 SB Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Raj. & Ors. superannuation from 58 years to 60 years. The said direction issued by the Registrar, Cooperative Societies, Jaipur dated 17.9.2008 has not been complied by the respondent society and, therefore, the petitioner was informed that he is to retire on 2.5.2009. According to the petitioner, the respondent society is running in profits for last three financial years and is bound to take a decision by way of resolution to be passed in the meeting of Board of Directors. It is submitted that the decision is not being taken by the respondent society so that the petitioner may retire after attaining the age of 58 years and there is every likelihood that the respondent society may take a resolution thereafter. The respondent society has submitted reply to the writ petition and annexed a statement of strength of the employees to show that there is sanctioned strength of 24 employees against which 25 are working. It is submitted that the respondent in view of the above fact cannot increase the age of superannuation of the 3 SB Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Raj. & Ors. employees from 58 to 60 years. It is also submitted that the order dated 17.9.2008 clearly shows that it is only a desire of the Registrar that in certain circumstances only, the age of superannuation be increased from 58 to 60 years and the society has decided not to increase the age of superannuation. It is also submitted that no mandamus can be issued to the society directing the society to pass resolution so as to increase the age of superannuation of the employees from 58 to 60 years. It is also submitted that the order dated 17.9.2008 is not enforceable as the society is free to take its own decision and no one can take the right of the society for increasing the age of superannuation. Learned counsel for the petitioner in support of his case relied upon the judgment of this Court delivered in the case of Basudev Singh vs. The Rajasthan State Cooperative Bank & Anr. reported in 1993(3) WLC 198, copy of which has been shown to this Court. Learned counsel for the petitioner also relied upon the judgments of this Court delivered in the cases of (1) Dharmi Lal Dama vs. 4 SB Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Raj. & Ors. State of Rajasthan and ors. reported in 2009(1) WLC (Raj.) 540 and (2) Board of Indian Medicine, Rajasthan vs. Rajasthan Indian Medicine Board Karamchari Sangh and another reported in 2008(3) WLC (Raj.) 368. I considered the submissions of learned counsel for the parties and perused the facts of the case. Rule 39(1) of the Rules of 2003 reads as under:- “39. Officers and employees of co- operative societies .- (1)Notwithstanding anything contained in the bye-laws of any society, no co-operative society shall appoint any person as its paid officer or employee in any category of service, unless he possesses the qualifications and furnishes the security, if so specified by the Registrar from time to time, for such category of service in the society, or for the class of society to 5 SB Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Raj. & Ors. which it belongs. The conditions of service including discipline and control of the employees of the societies shall be such as specified by the Registrar. (2)No co-operative society shall retain in service any paid or employees, if he does not acquire the qualifications or furnish the security as is referred to in sub-rule (1) within such time as the Registrar may direct. (3)The Registrar may for special reasons, relax in respect of any paid officer or employee, the provisions of this rule in regard to the qualifications he should possess or the security he should furnish. (4)Where it comes to the notice of the Registrar that a paid officer or servant of a society has committed or has been otherwise responsible for misappropriation, breach of trust or other offence, in relation to the society, the Registrar may, if in his opinion, there is prima facie evidence against such paid officer or servant and the suspension of such paid officer or servant is necessary in the 6 SB Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Raj. & Ors. interest of the society direct the committee of the society pending the investigation and disposal of the matter, to place or clause to be placed such paid officer or servant under suspension from such date and for such period as may be specified by him. (5)On receipt of a direction from the Registrar under sub-rule (4), the committee of the society shall, notwithstanding any provision to the contrary in the bye-laws, place or cause to be placed the paid officer or servant under suspension forthwith. (6)The Registrar may direct the committee to extend from time to time the period of suspension and the paid officer or servant so suspended shall not be reinstated except with the previous sanction of the Registrar, whose decision shall be final. (7)If the committee fails to comply with the direction issued under sub-rule (4), the Registrar may make an order placing such paid officer or servant under suspension from such date and for such period, as he may specify in the order and thereupon the paid officer or servant, as the case may be, 7 SB Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Raj. & Ors. shall be under suspension. (8)Immediately after placing the employee under suspension under sub-rule (4) or (7) as the case may be, the society shall initiate disciplinary action against the suspended employee under the prevalent service/disciplinary rules applicable on the employee.” Rule 39 of the Rules of 2003 clearly provides that the condition of service including discipline and control of the employees of the societies shall be such as specified by the Registrar and, therefore, the Registrar has ample jurisdiction to issue such direction to the society. The order passed by the Registrar dated 17.9.2008 is not under challenge. Even after this position, learned counsel appearing for the respondent society is right in saying that the order dated 17.9.2008 is only a direction to the society to consider the case of increase in the age of superannuation by taking into account the relevant consideration and thereafter, the society may take a decision and the order dated 17.9.2008 is not a direction to 8 SB Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Raj. & Ors. the society to increase the age of superannuation from 58 to 60 years. Learned counsel for the respondent society also submitted that since the respondent society has not taken decision to increase the age of superannuation from 58 to 60 years, therefore, the petitioner cannot get any relief. So far as the issue involved in this writ petition with respect to the fact that whether the society can refuse to take a decision in pursuance of the directions issued by the Registrar dated 17.9.2008 is concerned, from the reply as well as stand taken by the respondents, I do not find that the respondent society's board ever considered the resolution dated 17.9.2008 in its meeting and decide not to increase the age of superannuation. The respondent's power to pass any appropriate order in its own meeting has not been taken away by the order dated 17.9.2008 nor it is proposed to be taken by the order of this Court. The order passed by the Registrar cannot be ignored and the respondents should have considered the matter in its board meeting objectively and without any bias and should have taken a decision whether to 9 SB Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Raj. & Ors. increase the age of superannuation or not ? In this case, learned counsel for the petitioner pointed that the petitioner is working as Pharmacist and sanctioned post is five and against this, only three are working, is the admitted case in view of the stand taken by the respondent society and the document Annexure-R.3/1 produced by the respondent society itself. Looking to the totality of the facts, when the Registrar is an authority under the Rajasthan Cooperative Societies Act and has ample power to issue directions in relation to service matters, the respondent may be directed to convene the meeting to consider the issue of increase of age of superannuation of its employees. In view of the above, this writ petition is allowed and it is directed that the respondent shall convene the meeting of the Board and consider the directions issued by the Registrar on 17.9.2008 and shall take a decision and since the petitioner is going to retire on 2.5.2009 and in such a short period, the Board cannot take a 10 SB Civil Writ Petition No.3039/2009 Som Nath Vig. vs. State of Raj. & Ors. decision by convening the meeting, therefore, any order if passed, then it be passed taking into account that the petitioner's right how can be safeguarded, if the Board decides to take the decision to increase the age of superannuation from 58 to 60 years. The respondent shall convene the meeting in accordance with its bye-laws and expeditiously pass the resolution in either way within a period of one month and convey it to the petitioner. In case, any order adverse is passed against the petitioner, the petitioner will be free to approach this Court. (PRAKASH TATIA), J. S.Phophaliya