IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14312 of 2008 1. ASHOK KUMAR SINHA s/o late Shyam Bihari Sharma, resident of 3/83 Biscomaun Colony, P.S. Alamganj, District- Patna. 2. Yogendra Prasad Singh s/o late Ram Nandan Prasad Singh, resident of Gaighat Dakshini Gali, P.S. Alamganj,District- Patna. 3. Surendra Prasad Chaudhary s/o late Ram Chandra Chaudhary, resident of Mohalla Moghalpur Jaggi ka Chauraha, P.S. Khajekala, District- Patna. 4. Md. Aquel Ashraf s/o late Abdul Wakeel, resident of Mohalla Lalbagh, P.S. Peerbahore, District-Patna. 5. Shreechand Prasad Sinha s/o late Guru Sahay Mahto, resident of Mohalla Saidpur, P.S. Kadamkuan, Distict- Patna. Versus 1. THE STATE OF BIHAR through the Secretary, Department of Cooperative,Govt. of Bihar, Patna. 2. The Secretary Co-operative Department, Govt. of Bihar,Patna. 3. The Biscomaun ,West Gandhi Maidan through its Secretary. 4. The M.D. Biscomaun, West Gandhi Maidan,Patna. 5. The Registrar, Co-operative Societies,Govt. of Bihar,Patna. 6. The Assistant Registrar,Cooperative Societies,Govt. of Bihar, Patna. ----------- 3 17.9.09 The five petitioners are the employees of the Bihar State Co-operative and Marketing Union (BISCOMAUN), which is under supersession at present and Administrator has been appointed by the State Government. Their principal grievance is that they apprehend and are being superannuated only on completion of 58 years of age instead of 60 years as had been resolved by the Board of Directors of BISCOMAUN on 2.11.2007. In my view this controversy is no more alive as by judgment and order dated 22.2.2009 passed in CWJC No. 5387 of 2009 this had been set to rest. It has been observed by this Court that the 2 Resolution aforesaid would be effective from the said date and BSCOMAUN could not retire people before that . It appears that this order having been brought to the notice of the authority of the BISCOMAUN and order was issued by the Managing Director pursuant to the order of the Administrator, stating that the increasement in age of superannuation would be effective in view of the judgment of this court aforesaid with immediate effect. This is the order dated 30.7.2009 apparently being passed in pursuance of the order dated 22.6.2009 of this Court. Learned counsel for the petitioners submits that this order is contrary to the order of this Court because this Court in the writ petition had held that the resolution of BISCOMAUN dated 2.11.2007 is the resolution by which this was to be effective. Learned counsel for the petitioners is correct. This Court enunciated the law that once the decision had been taken by the Board of BISCOMAUN, which was competent to take a decision , that decision could not be kept in abeyance and had to be executed. It may be noted that five petitioners have filed this writ petition on 18.9.2008, that is prior to their date of superannuation on attaining the age of 58 years. During the pendency of the writ petition, four of the writ petitioners had superannuated on completing the age of 58 years except 3 petitioner no.2, who was to superannuate on 31.7.09 and the order of Managing Director is dated 30.7.2009 and as such it did not fall on him. In view of the judgment of this Court, it is clear that what this Court said was that once the Board of Directors had taken the decision on 2.11.2007, it was effective immediately. Thus none of the petitioners could have retired nor could the Managing Director restricts the operation of the judgment of this Court and make operative from 30.7.09. The Administrator/ Managing Director cannot sit in appeal or in judgment over judgment and order of this Court. However, Mr. Jitendra Singh, learned Senior counsel appearing for BISCOMAUN brings to the notice of this Court the judgment of Apex Court in the case of U.P. Jal Nigam & anr. –v- Jaswant Singh & anr. since reported in (2006)11SCC 464. He submits that under similar circumstances so far as employees of U.P. Jal Nigam are concerned, the Apex Court first held that the age of superannuation stood extended to 60 years but then several writ petitions were filed at different times much later claiming continuity in service and this created problem for Jal Nigam. Employees had not worked at all having superannuated on the old superannuation age and came to the Court much later or did not come to the Court at all , they 4 accepted their superannuation. The Apex Court clarified after deducing the law in that regard that those persons who had not approached the Court in time would not get the benefits having accepted superannuation. In my view, there is no escape from accepting this position because that is the position of law by the Apex Court but that would not apply to the facts of the present case because all the five petitioners came to this Court while they were in service itself and prior to their superannuation at the age of 58 years they having been vigilant and cannot be put to loss if this matter remains pending for almost a year.This writ petition was filed on 18.9.08. Therefore, though it is noticed that the law , as laid down in the case of Jal Nigam (supra) is applicable but in the facts of this case, which are different, this principles will not apply. The writ petition is consequently allowed. It is held that the petitioners would be deemed to be continuing in service for all purposes till they attain the age of 60 years. Singh ( Navaniti Prasad Singh,J.)