1 IN THE HIGH COURT OF JUDICATAURE FOR RAJASTHAN AT JODHPUR. ORDER. (1) S.B. Civil Writ Petition No.8626/2009 Dairy Karamchari Union vs. The State & ors. & ors. (2) S.B. Civil Writ Petition No.9102/2009 Lumba Ram Vishnoi vs. The State & ors. & ors. (3) S.B. Civil Writ Petition No.6581/2009 Kanti Lal Ojha vs. The State & ors. & ors. (4) S.B. Civil Writ Petition No.7168/2009 Kishan Lal Chanwariya vs. The State & ors. (5) S.B. Civil Writ Petition No.8823/2009 Om Prakash vs. The State & ors. (6) S.B. Civil Writ Petition No.8824/2009 Chog Singh vs. The State & ors. (7) S.B. Civil Writ Petition No.8946/2009 Bharat Singh Rathore vs. The State & ors. & ors (8) S.B. Civil Writ Petition No.9000/2009 Gopal Mohan Gupta vs. The State & ors. (9) S.B. Civil Writ Petition No.9001/2009 Mahesh Chandra Pandey vs. The State & ors. 2 (10) S.B. Civil Writ Petition No.9002/2009 Mulri Manohar Vyas vs. The State & ors. (11) S.B. Civil Writ Petition No.9003/2009 Ghanshyam Singh vs. The State & ors. (12) S.B. Civil Writ Petition No.9004/2009 Mahesh Chand vs. The State & ors. (13) S.B. Civil Writ Petition No.9005/2009 Vinit Kumar Gupta vs. The State & ors. (14) S.B. Civil Writ Petition No.9007/2009 Banwari Lal Gupta vs. The State & ors. (15) S.B. Civil Writ Petition No.9008/2009 Abdul Sadique vs. The State & ors. (16) S.B. Civil Writ Petition No.9010/2009 Vijay Prasad Sharma vs. The State & ors. (17) S.B. Civil Writ Petition No.9046/2009 Poonam Chand Purohit vs. The State & ors. (18) S.B. Civil Writ Petition No.9104/2009 Nagendra Kumar Devpura vs. The State & ors. & anr. (19) S.B. Civil Writ Petition No.9413/2009 Pukhraj Choudhary vs. The State & ors. 3 & ors. (20) S.B. Civil Writ Petition No.9471/2009 Mahendra Singh vs. The State & ors. Chundawat & ors. Date of Order: February 25th, 2010. PRESENT HON'BLE MR. PRAKASH TATIA, J. Servashri M.R. Singhvi, SD Vyas, Girish Joshi, JS Purohit, PK Lohra, for the petitioners. Servashri P.P. Choudhary, Rajesh Joshi, Anand Purohit,AAG, K.K. Bhati, B.P. Mathur, V.R. Choudhary, B.S. Bhalasria and, Ashvini Gehlot for the respondents. REPORTABLE BY THE COURT : In all the writ petitions, substantially the relief of the petitioners is for claim of their age of superannuation at the age of 60 years and not at the age of 58 years. In some of writ petitions, some facts are disputed and there are allegations of suppression of facts by the petitioners and objection of non-maintainability of the writ petitions of some petitioners due to lack of territorial jurisdiction of Principal Seat of the Rajasthan High Court and objection of 4 misjoinder of parties, therefore, only relevant facts for above purpose are narrated herein below. However, all the contentions have been considered together in the judgment and for convenience, the documents which have been referred from the files, have been referred for deciding all the writ petitions. The learned counsel for the parties agreed that the writ petitions may be decided by treating the reply of the RCDF to be in all the writ petitions as well as reply of other respondents may also be considered together. (1) S.B.Civil Writ Petition No.6581/09: This writ petition is by writ petitions, who are employees of Paschimi Rajasthan Dugadh Utpadfak Sahakari Sang Limited, Jodhpur and in the original writ petition, they have challenged resolution dated 30.6.2009 (Annex.16) which is the resolution of the annual general meeting of the said respondent-employer society wherein a resolution was carried that age of superannuation of the employees may be kept 58 years, after noticing the fact that the Managing Director of the RCDF has already increased the age of superannuation from 58 years to 60 years. In this petition, the petitioners' further contention is that the decision of the respondent is in contravention of the tripartite agreement (Annex.3) and for other reasons, taking a decision about the age of superannuation of the 5 employees of the respondent-society, is illegal and the order of the State Government(Registrar) dated 17.9.2008 is binding on respondent-RCDF and the employer-society. Further it has been prayed that if the circular dated 17.9.2008 gives power to respondent no.3(cooperative society) to decide on the question of age of retirement, then the same be quashed and set aside. The petitioner also submitted an application for amendment of the writ petition. By this application, the petitioners want to implead (1) Principal Secretary, Co- operative Department, Govt. of Rajasthan, Jaipur, (2) Principal Secretary, Animal Hunsbandry, Govt. of Rajasthan, Jaipur, (3) Deputy Secretary, Animal Husbandry, Govt. of Rajasthan, Jaipur and Shri Ramchander Choudhary, Chairman, Ajmer Dugadh Utpadhak Sahkari Sang, Ajmer as party. The petitioners further want to take several new grounds in the writ petition. This application was opposed by respondent no.3-society. However, remaining said application pending, the parties argued the petition on merit in detail on the ground which are common in all the writ petitions. In this petition, there is no objection about the territorial jurisdiction and the writ petition has been filed by all the petitioners who are members of the respondent no.3-Cooperative society, which is situated within the territorial jurisdiction of this Court. 6 (2)S.B.Civil Writ Petition No. 7168/09 : This petition has been submitted th petitioner Kishan Lal, employee of Churu Sahakari Dugadh Utpadak Sangh Ltd. praying for quashing of reslution dated 5.6.2009 (Annex.17) wherein the Board of Directors, after taking note of the objection of the Assistant Registrar, Cooperative Society and decision of the Managing Director of RCDF to increase the age of superannuation, decided not to increase the age of superannuation of the respondent-cooperative society of Churu. This decision was taken on the plea that since last three years, the respondent-society is running in loss. The petitioner also sought relief for quashing of the order dated 13.6.2009 retiring him on attaining the age of 58 years and the order dated 13.6.2009 which is the order cancelling the earlier order dated 22.9.2008 in the light of the decision dated 5.6.2009 for reducing the age of superannuation from 60 years to 58 years and order dated 15.7.2009(Annex.23) for taking charge from the petitioner. In this petitition, the respondent no.3-Churu Sahakari Dugadh Utapadak Sangh Ltd. has submitted reply. (3) S.B.Civil Writ Petition Nos.8823/2009 and 8824/2009: These petitions have been submitted by the petitioners who are employees of Pali Zila Dugadh Utpadak Sahakari Sangh Ltd., Pali Marwar and the said cooperative society submitted reply to the petitions. In these petition it has 7 been admitted that the respondent-society is member of the RCDF, with the plea that yet there is no share capital of the State in respondent-society. In these petition, there is no objection about the territorial jurisdiction of this Court. (4) S.B.Civil Writ Petitions No.8946/09: The employes of Udaipur Dugadh Utpadak Sahakari Sangh Limited, Udaipur have preferred the writ petition on the basis of the same facts with same plea as has been raised in other writ petitions. In this also there is no objection about the territorial jurisdiction of this Court. The other pleas are the same. (5) S.B.Civil Writ Petitions Nos.9000/09, 9001/09, 9002/09, 9003/09, 9004/09, 9005/09, 9007/09, 9008/09,9010/09 & 9413/09: These writ petitions have been filed by the petitioners who are employees of respondent no.3-Uttari Rajasthan Sahakari Dugdh Utpadak Sarsh Ltd., Bikaner. In these petition, the petitioners challenged the order dated 1.9.2009 issued by the respondent-society in pursuance of the withdrawal of the order of the Managing Director of the RCDF by which the age of superannuation was increased and consequently the order of retiring the 14 employees including the petitioners and also challenged the order dated 31.8.2009(Annex.5), the order of RCDF. In these petitions also, the question of territorial jurisdiction of the 8 petitions is not involved. (6) S.B.Civil Writ Petitions No.9046/09: This writ petition has been preferred by the petitioner- employee of RCDF-the Apex Cooperative Society. The petitioner is Deputy Manager, Cattle Feed Plant, Jodhpur, as he has been sent by the RCDF of on said post. In this case also there is no objection of territorial jurisdiction as well as petition is against the decision of the Apex Society. (7) S.B.Civil Writ Petitions No.9104/09: This writ petition has been filed by four writ petitioners and petitioners no.3 and 4 are employees of the Kota Zila Dugadh Utpadak Sahakari Sang Limited, Kota, whereas petitioner nos.1 and 2 are members of Udaipur Dugadh Utpadak Sahakari Sangh Limited, Udaipur and Sri Ganganagar Zila Dugdh Utpadak Sahakari Sang Limited, Hanumangarh. In this petition, petitioners no.3 and 4 are seeking relief against the society situated not within the territorial jurisdiction of the Principal Seat of the Rajasthan High Court. (8) S.B.Civil Writ Petitions No.9471/09: This writ petition has been preferred by the three employes of the Bhilwara Zila Dugadh Utpadak Sahakari Sang Ltd., Bhilwara and in this writ petition there is no objection about the territorial jurisdiction of this Court. (9) S.B.Civil Writ Petitions No.8626/09: 9 This writ petition has been preferred by as many as 21 petitioners. The petitioner nos.1,3,4,5,6,7,8,9,10 and 11 are the employees of the Cooperative Societies Jodhpur, Bikaner, Banswara and Raniwada, whereas petitioner no..2- Union is of the employees of Ajmer Zila Dugadh Utpadak Sahakari Sangh Ltd., Ajmer and others are employees of Ajmer Dugdh Utpadak Sahakari Sangh Ltd. Ajmer. The detail facts referred in the judgment are same; in this petition and as in other petition and in this petition there is objection of territorial jurisdiction and objection of misjoinder of parties and suppression of facts. (10) S.B.Civil Writ Petitions No.9102/09: This writ petition has been preferred by petitioner no.1 and 2 whose cooperative societies is situated within the jurisdiction of Principal Seat of Rajasthan High Court, whereas petitioners nos.3 to 7 are resident of Jaipur and, obviously, they may be employees of the RCDF, the office of RCDF is at Jaipur. The employees of Union and employees of various Dairys have preferred these writ petitions and substantially claiming one relief that the employees of the various Dairys run by the Cooperative Societies are entitled to continue in service upto the age of 60 years in terms of the Government order dated 17.9.2008 and by virtue of order dated 19.9.2008 passed by the Managing Director of the 10 Rajasthan Cooperative Dairy Federation Limited (for short “RCDF”). Since all the matters have been heard together at the request of the learned counsel for the parties and in view of involvement of common question of law and facts, all these writ petitions are decided by this common judgment. The Cooperative Societies registered under the Rajasthan Cooperative Societies Act, 1965 or under the same Act of 2001 are now governed by the provisions of the Rajasthan Cooperative Act 1956. The Cooperative Society may be “Apex Society”, “Central Society”, “Cooperative Society or Society” or “primary society”. The Apex Society is defined in clause (a) of Section 2 of the Act of 2001. As per said definition, the “Apex Society” means a Society whose core object is to provide facilities for the operation of other societies affiliated to it and whose area of operation extends to the whole of the State of Rajasthan. The “Co- operative society” or “Society” as defined in clause (i) of Section 2 of the Act of 2001 means society registered or deemed to be registered under the Act of 2001. In this controversy we are not concerned with the primary Society and central Society. Admittedly, the respondent-RCDF is Apex Society in terms of sub-section (a) of Section 2 of the Act of 2001 and other Societies, whose employees and unions have 11 preferred writ petitions, are the Cooperative Societies as defined in clause (i) of Section 2 of the Act of 2001. Member in any Apex Society or in Cooperative Society is defined in clause (p) of Section 2 which says that “Member” means a person joining in the application for the registration of co-operative society and a person admitted to membership after such registration in accordance with the Act of 2001 and the rules and the bye-laws and includes a nominal and an associate member. Representatives of the Cooperative Societies involved in this controversy were signatories in the application for registration of Apex Society RCDF. Therefore, according to the petitioners, all the Co- operative Societies( are also referred as Union or dairys), with the signatures of whose representatives the RCDF was constituted, became the Member of the RCDF in terms of Section 2(p) of the Act of 2001. It is stated by the petitioner that employees working in all the Societies are under the direct supervision and control of the RCDF and the RCDF being the apex body, is empowered to frame service regulations and in exercising that power, the RCDF framed the service regulations, which are known as Rajasthan Cooperative Dairy Federation Employees (Non-Workmen) Service Regulations, 1980. It is also submitted that the State Government has power to issue orders and directions to the RCDF and other Cooperative Societies under the Act 12 and, therefore, the RCDF, in pursuance of the Government order, issued an order dated 16.6.1990 (Annex.2) that all the Unions(Cooperative Societies) shall adopt Model Service Rules, Cadre and Recruitment Rules, Standing Orders as suggested by the RCDF. The said clause which is relevant for the purpose of deciding these writ petition is required to be quoted here:- “12. That the Milk Producers Cooperative Unions shall adopt Model Service Rules, Cadre and Recruitment Rules, Standing Orders as suggested by RCDF from time to time and shall not rescind/alter or modify these rules without the prior approval of the Federation.” Then it is submitted that in view of the order passed by the Government, obeyed by the RCDF and other milk Unions(Co-operative Societies), all the Unions were directed to execute agreement with the RCDF. The petitioner placed on record copy of the model agreement in S.B.Civil Writ Petition No.8626/09. In this model agreement, clause (3) is the verbatim the same clause (12) quoted above. By virtue of above agreement, all the dairys (Co-operative Societies) again agreed to follow all Service Rules and conditions prescribed by the RCDF for the employees of the Societies signing the agreement. The petitioners' counsel with the help of various provisions under the Act of 2001 submitted that there 13 cannot be different service conditions, one applicable for the Apex Society and another for its signatory members of the Society. It is also submitted that the petitioners' employer- Societies are the working societies, whereas the RCDF has no working of its own and they are charging some commission from the societies for rendering services. It is submitted that there was demand of various organisation to increase age of superannuation of the employees of various organisations, Corporations, Board and Companies etc. from 58 years to 60 years. The State Government, in pursuance of demand raised by several organisations, issued circular dated 26.8.2008 declaring enhancement of the age of superannuation of the employees of the Corporation, Board, Companies under the purview of Bureau of Public Enterprises from 58 years to 60 years with immediate effect. The said enhancement of age of retirement was made applicable to all those employees who were due to retire in the month of August, 2008. According to the petitioners, since the RCDF is also akin to public enterprises inasmuch as the Government is having absolute control over it and the Government has made substantial contribution, therefore, the employees of the RCDF, various milk Unions(societies) submitted their representations to the Government for enhancement of age of retirement of employees of these Cooperative Societies. 14 However, no decision was taken by the Government and the employees were likely to retire from 31.8.2008, therefore,the RCDF passed the order on 15.9.2008 laying down that no employee shall be retired in the month of August, 2008 in the RCDF and milk Unions and they shall continue as such till 30.9.2008 at their respective places, however, such employees shall not be paid(salary) in case a decision is reached to keep the retirement age as 58 years. In view of the said order, none of the employee of the RCDF and employees of other societies retired on attaining age of 58 years by 31.8.2008. Ultimately, on 17.9.2008, the Registrar, Cooperative Societies, exercising power conferred by rule 39 of the Rajasthan Cooperative Societies Rules, 2003, issued order to allow Cooperative Societies to increase age of superannuation of employees of the Societies and classified societies in two categories; one where there is no share capital of Government nor Government has provided any aid to Cooperative Societies, then those Societies' Board of Directors were given liberty to enhance age of superannuation of their employees from 58 years to 60 years if it is in the interest of society. The another set of societies were those societies wherein the Government interest is involved by way of capital investment or by way of contribution of Government's interest. For these type of societies, the 15 Board of Directors of the Societies were directed to take a decision for enhancement of age of superannuation of employees provided the society concerned is running in profit for past three years and there was no loss in past three years and number of persons working are not beyond the sanctioned staffing strength. The Board of Directors were directed to take a decision for enhancement of age of retirement on finding above facts and on finding that the decision to increase age of superannuation will be in the interest of society. Not only this but as per sub-clause (ख) of clause (2) of order dated 17.9.2008, the societies who were not running in profit for last three years and were in losses and or whose employees were more than the sanctioned strength, then the Board of Directors were allowed to take a decision after considering the business of the Society and interest of Society, whether it is appropriate to increase the age of superannuation from 58 years to 60 years. In such situation, the Board of Directors were required to give their resolution to the Registrar, Cooperative Society, who may pass appropriate order. In view of the order dated 17.9.2008, the petitioner's contention is that in a case falling under sub-clause (क) of clause 2 of order dated 17.9.2008, no option was given to the Board of Directors to take a decision not to enhance age of superannuation from 58 years to 60 years, rather say, 16 according to the petitioners, the Board of Directors were required to take a decision to increase age of superannuation. It is also submitted that for this class of Societies covered under sub-clause (क), the matter of increase in age of superannuation is not required to be even forwarded to the Registrar of the Cooperative Society. However, in case where the society was in losses during last three years and was not earning profit (no loss no profit) and in case the staff is more than sanctioned strength and even then if Board of Directors decides to increase the age of superannuation of the employees of the society to 60 years then that society is required to take a decision and forward it to the Registrar, Cooperative Society. It is submitted that in that situation also, the Registrar cannot reject the proposal without any lawful and valid reason. Therefore, according to the petitioners, in view of the order dated 17.9.2008, all the employees of all the societies could have retired only on attaining the age of 60 years. The petitioners submitted that the meeting was convened on 15.9.2009 of the Board of Directors of the RCDF and in that meeting resolution No.109(13) was passed. By this resolution, it was decided that the employees shall continue to work on same conditions as given in order dated 30.8.2008 upto 30.9.2008. In this resolution No.109(13), the Managing Director of the RCDF 17 was authorised to pass order for enhancing the age of retirement upon receipt of the information(order) from the Government. It is submitted that in furtherance of the said resolution No.109(13) dated 15.9.2009, the Managing Director issued order on 19.9.2008 and it was acted upon and none of the employee of any Cooperative Society was retired on attaining age of 58 years. It is submitted that one Ram Chandra Choudhary, Ajmer Zila Dugdh Utpadak Sahkari Sangh Limited, Ajmer challenged the order passed by the Managing Director of the RCDF dated 19.9.2009 and the orders dated 17.7.2009 passed by the Deputy Secretary, Animal Husbandry, Government of Rajasthan, Jaipur as well as the order dated 22.9.2008 passed by the Managing Director, Ajmer Zila Dugdh Utpadak Sahkari Sangh Limited, Ajmer by preferring revision petition before the Hon'ble Minister, Cooperative Societies. According to the petitioners, any order passed by the Registrar or State could not have been challenged by way of revision under Section 107 of the Act of 2001. However, in the said revision petition, neither the employees nor their Unions were impleaded as parties against whom relief was sought by said Ram Chandra Choudhary. In said revision, Hon'ble Minister passed the interim order on 29.9.2008 and stayed the impugned orders. 18 It will be worthwhile to mention here that the RCDF submitted reply in one of the writ petitions wherein the RCDF, in reply to para 11 of the Writ Petition without denying the petitioner's contention that resolution No.109 (13) was taken in the Board of Director's meeting of RDCF, stated that “para 11 of the writ petition is admitted. The Board of Director has power to resolve policy matter. The minutes of the Board of Director of respondent no.4(i.e. Minutes 110(8)) has been deferred. The photo copy of minutes dated 23.10.2008 is enclosed as Annex.R-4/1.” The resolution NO.109(13) is relevant fact as well as seriously disputed fact, as has been disputed by the respondent- Society and private respondent Ram Chandra Choudhary and it has been submitted that no resolution N0. 109(13) as alleged by the petitioner was passed by the Board of Directors of the RCDF and according to the respondent- Society, the copy of resolution containing resolution No.109 (13) produced by the petitioner is forged and fabricated document. However, subsequently, it was stated in arguments that in fact, a copy of draft resolution which was not put for consideration of the Board of Directors, has been placed on record by the petitioner to take benefit of that resolution which was not passed by the Board of Directors. To find out truth, this Court directed the RCDF to produce the original record, upon which the original records were 19 produced for perusal of the Court which has been perused by the Court. In sum and substance, the contentions of the petitioners are that the Apex Society-the RCDF has right to take a decision for enhancement of the age of superannuation of employees of the RCDF as well as for employees of the affiliated societies. The affiliated societies are bound by the directions issued by the RCDF by virtue of its position as Apex Society as well as because of the fact that by becoming signatory to the Registration of the RCDF as Society under the Act of 2001. The society became member of the Apex Society, therefore, the affiliated societies are bound by the decision of the RCDF. There cannot be different age of superannuation, one for the Apex Society's employees and another for affiliated societies' employees. It was a policy decision of the Government to increase the age of superannuation conveyed to the society by the order of the Registrar, Cooperative Societies dated 17.9.2008. As per order dated 17.9.2008, the petitioners- employees of the RCDF as well as employees of the Societies are entitled to continue in service upto the age of 60 years. Then the employees of the Societies and employees of the RCDF could not have been retired on attaining the age of superannuation after the order of the Managing Director of the RCDF dated 19.9.2008, which was 20 issued after the order of the Registrar, Cooperative Societies dated 17.9.2008 as well as after the resolution No. 109(13) of the RCDF dated 15.9.2008. On facts, the