IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7315 of 2009 RAJ NANDAN CHOUDHARY, S/o-Late Banshi Choudhary, resident of village-Gadaipur, P.S.-Nagma, District-Patna. …….Petitioner Versus 1. The Bihar State Ware Housing Corporation having its Office at B/2 First Floor, Maurya Lok Complex, P.S. Kotwali, District-Patna through its Chairman. 2. The Managing Director, Bihar State Ware Housing Corporation having its Office at B/2 First Floor, Maurya Lok Complex, P.S.-Kotwali, District- Patna. …….Respondents. ----------- 03. 24.07.2009 How State and its instrumentality instead of doing their respective work generate litigation is exemplified by this case. The State Government took a general decision to increase the age of superannuation of employees from 58 years to 60 years on 24.03.2005. A reference to the said decision of the State Government which was published under the Authority of the Governor, apart from things shows one important aspect. It clearly stipulated that the decision to enhance the age of superannuation would be effective immediately, steps for amending Rule 73 of the Bihar Service Codes will be taken up separately. What this Court wants to emphasize is once a decision is taken it had to be acted and implemented immediately. The amendments to Rules being legal paper formalities were to follow in due course. Implementation could not await amendment of Rules. 2 Bihar State Ware Housing Corporation is a statutory Corporation constituted under the Ware Housing Corporation Act, 1962. The said Act authorizes the State Governments to form their own Ware Housing Corporations. The Management of the State Ware Housing Corporation as per Section 20 is vested in the Board of Directors which constitutes of Chairman appointed by the State Government from amongst the Director of the Corporation with the approval of the Central Ware Housing Corporation and Managing Director appointed by the State Government in consultation with Directors nominated by the Central Ware Housing Corporation and the State Government. Section 42 of the Act inter alia provides that the State Ware Housing Corporation, with the previous sanction of the State Government, may make regulations not inconsistent with the Act and the Rules framed thereunder for all matters for which provision is necessary or expedient for the purposes of giving effect to the provisions of this Act. It is not in dispute that with the previous sanction of the State Government the Bihar State Ware Housing Corporation framed the Bihar State Ware Housing Staff Regulations of which Section 13 is relevant and quoted hereunder. “Regulation-13 : Superannuation after attaining the age of 58 years. Every employee shall retire on attaining 3 the age of 58 years. Provide that the Board of Directors may in the interest of the Corporation, extend the period of service of an employee beyond the age of superannuation for such period as may be considered necessary. Provided further that nothing in this Regulation shall be deemed to affect the powers of the Corporation to employ any person above the age of 58 years on contract.” With reference to Regulation 13 above noted submissions of the Respondents is that Regulation 13 provides for age of superannuation at 58. It is not open to the Corporation or its Board of Directors or its Executive Committee to amend the Regulation on their own which can only be done with the previous sanction of the State Government as contemplated under Section 42 read with Section 21 of General Clauses Act. This aspect would be advert to in greater detail. It appears that pursuant to the said decision of the State Government dated 23.04.2005 the Board of Directors of the Corporation took a decision to enhance the age of superannuation to 60 years of its employees. This decision was taken as far back as on 17.12.2005 as apparent from Annexure-1 itself and a proposal for 4 amendment of Regulation 13 was immediately sent to the Government. This was not approved by the Bureau of Public Enterprises and communicated by the Government to the Corporation. The Corporation then once again took a decision to the same effect on 14.07.2006 and it appears that the State Government in the Department of Co- operative by its letter dated 07.01.2008 again did not accept the proposal. Thereafter it seems the Board of the Corporation met on 04.04.2008 and decided to superannuate employees at the age of 58 years and issued the impugned order as contained in Memo No. 101 dated 30.04.2008(Annexure-1) to the writ petition. It is by virtue of this communication that the petitioner was made to superannuate on 30.04.2008 on attaining the age of 58 years. Thereafter by Memo No. 4379 dated 31st of October, 2008(Annexure-D to the counter affidavit) the State Government informed the Corporation that the Corporation’s request for extending the age of superannuation from 58 years to 60 years as communicated to the State Government by its letter dated 14.07.2006 has been accepted. State Government accordingly gives sanction for the same. Steps could be taken to amend Regulation accordingly. Regrettably even then the Corporation was 5 dragging its feet and denying its employees the benefit of extension of age of superannuation. Now we come to a more interesting aspect which is apparent from Annexure-E to the counter affidavit of the Respondents. This purports to be a decision of the Executive Committee of the Corporation dated 10.12.2008, duly authenticated by its Chairman. The facts as noted in the decision this Court finds most curious. With regard to agenda Item No. 7 the decision of the Executive Committee of the Corporation is that the age of superannuation should be increased to 60 and such a request must be made to the State Government apparently ignoring or forgetting deliberately or otherwise the sanction already granted by the State Government vide their letter dated 31 of October, 2008(Annexure-D). What was the purpose of a fresh request to the State Government when the State Government had already accorded its sanction is not understood. What is further curious is in the same from Resolution it is stated that once the State Government sanctions the increase of age of superannuation to 60 the decision of the Corporation as contained in Memo No. 101 dated 30.04.2008(Annexure-1) would itself be deemed to be cancelled. This was apparently already decided on 05.05.2008. Thus seen it would be clear that pursuant to the request made by the Board of Directors as far back as in 6 2005 reiterated in 2006 the State Government gave its sanction in between a decision was taken by the Corporation to superannuate the petitioner, that decision the Board of Directors themselves rescinded. If the State Government gave sanction, the impugned decision dated 30.04.2008 stood rescinded, still petitioner is not taken back in regular service instead now he is faced with the impugned Annexure-8 dated 10.06.2009 which again refers to Memo No. 101 dated 30.04.2008(Annexure-1) as it still existed. Further it shows that in terms of Regulation 13, till attaining the age of 60 employees would have to enter into a fresh agreement for service. Now I must consider Mr. Giri’s submission on behalf of Corporation with regard to Regulation-13 as quoted above. Mr. Giri submits that Regulation 13 specifically fixes the age of superannuation and it is not permissible for the Corporation to go beyond that age. I am not impressed. The argument is misconceived. On the fact of it, Regulation-13 is in three parts. The first part fixes the age of superannuation at 58. The second part is first proviso immediately thereafter which gives power to the Board of Directors to extend the period of service of employees and the age of superannuation for such period as he may consider it necessary. These Regulations as noted above is with previous sanction of the State Government. 7 In my view, this first proviso gave ample power to the Corporation to extend the age of superannuation of its employee till the age of 60 which was the decision of the Board of Directors themselves repeatedly and the State Government as well. Then there is second proviso which provides for an alternative of entering into contract for people who have superannuated at the age of 58. Regrettably the Managing Director of the Corporation exercises power in terms of second proviso and issues direction for contractual service as contained in Annexure-8 forgets to exercise power under first proviso pursuant to decision of its own Board to extend the age of superannuation to 60 years. It on these grounds I find that the submissions of the Respondents as made by Mr. Giri unacceptable. In my view, once the Board of Directors took a decision to increase the age of superannuation on 14.07.2006 in consonance with the decision of the State Government dated 24.03.2005 and then, referring to the same, sanction was accorded by the State Government, it is evident by Annexure-D to the counter affidavit that the entire exercise was complete as from the date of decision of the Corporation dated 14.07.2006 at least if not from the date of decision of the State Government dated 23.04.2005 the age of superannuation of the employees of the 8 Corporation stands extended. This is the view of this Court in C.W.J.C. No.8670 of 2008 disposed of on 12.11.2008 which was followed in C.W.J.C. No. 5787 of 2009 which was disposed of on 13.05.2009 where in the later case both the State counsel and the counsel for the Ware Housing Corporation did not dispute the applicability of the first decision. What surprises this Court is that notwithstanding these decisions by this Court, the Corporation is not giving the benefit of the law as laid down therein to all employees. They await orders from the Court in each individual case. Once the law has been laid down it is the duty of all authorities to obey the law. The law does not have to be reiterated in each individual case. The law applies wherever the situation so arises. It is contemptuous for any Authority to act in defiance of or in ignorance of law. That is what the Authority have done in the present case which is resulting in multifarious multiple litigations uselessly. I may also note here that the Bihar State Ware Housing Corporation has not preferred any appeal against either in C.W.J.C. No. 8670 of 2008 or in C.W.J.C. No. 5787 of 2009. Though they accepted the Judgments, still they have not implemented the same which is regrettable and it only generates litigations. Mr. Giri’s next submission is that till Regulation-13 is not amended, they are helpless in the 9 matter. This is again misconceived. As would be seen from the decision of the State Government dated 23.04.2005(Annexure-2) there also it is specifically written that the decision will come into effect immediately, amendment of Rules to follow. Here also similarly State Government accorded sanction then the decision crystallizes and once the decision to extend the age of superannuation crystallizes amendment of Rule 13 would be a mere paper formality. Mr. Giri then submits that when earlier the Managing Director gave benefit of this extension to some people, there was serious audit objection in that regard. I may note that the audit objection was totally misconceived in view of the facts as noted above. I may also note that the audit objection is taken on basis of materials that are brought to their notice. If all relevant materials are not made available to the Auditors no one can expect a correct decision. Last objection of Mr. Giri is that this writ petition is not maintainable as LPA has been preferred against one of the Judgments, as noted above, by the State and State has not been made a party to this writ petition. All I can say is this is an argument in desperation and it has no substance. Board by not preferring LPA has accepted the Judgment and is bound to implement it. Petitioner 10 wants the Corporation to implement the judgment. There is no dispute with the State so far as petitioner is concerned. It is not a necessary party. At best it may be a proper party but that would not make the writ petition not maintainable. This Court wonders why all these objections by the Corporation in this case when they have accepted the earlier judgments of this Court only recently in other similar cases involving the same very issue. The writ petition is allowed. Petitioner would be deemed to be in continuous service till he retires at the age of 60 Years. Shageer (Navaniti Prasad Singh, J)