S.B. CIVIL WRIT PETITION NO.1319/2007 (Dr. G.D. Harsh & Ors. Vs. State of Rajasthan & Anr.) Date of Order :: 29th April 2008 HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. M.C. Bhoot, for the petitioners. Mr. Rameshwar Dave, Dy.G.C., for the respondent No.1. Mr. M. Mridul, Senior Advocate assisted by Mr. R.N. Upadhayaya & Mr. A.K. Choudhary, for the respondent No.2. …. BY THE COURT: By way of this writ petition, the petitioners have challenged the order dated 16.01.2007 (Annex. 12) issued by their employer, the respondent No.2 - Rajasthan State Seed and Organic Production Certification Agency (‘the Agency’ in short) whereby the petitioners were informed that they shall stand retired from service on 30.04.2007 after completing superannuation age of 58 years. This petition was filed on 07.03.2007 before coming into operation of the said impugned order and was entertained on 21.03.2007 issuing notices to the respondents. However, no interim order was passed, and ultimately the matter was taken up for final hearing at the request and with consent of the learned counsel for the parties. 1 Essentially the submission of the petitioners in this writ petition has been that their employer, respondent No.2, has no definite service rules for its employees and for want of any rule putting any retirement age as a service condition of the petitioners, the impugned order Annex.12 remains unauthorised. The petitioners have averred in the writ petition that the respondent No.2 is a statutory body registered under the Rajasthan Societies Act, 1960 and was established by the State Government in exercise of powers under Section 8 of the Seeds Act, 1966 (‘the Act’) under the gazette notification dated 30.03.1978 (Annex.1); that initially the name of respondent No.2 was “the Rajasthan State Seeds Certification Agency” that has now been changed to “the Rajasthan State Seeds and Organic Production Certification Agency”; that the respondent No.2 discharges statutory functions under the Act aforesaid and the Rajasthan State Seeds Certification Agency Rules, 1976 (‘the Rules’) but has not framed its bye-laws and so also the service rules for its employees. According to the petitioners, for want of service rules, their service conditions are regulated by the Rajasthan Service Rules (RSR) and the employees of the respondent No. 2 are availing all the facilities as are availed by the State Government servants. The petitioners have placed on record the order Annex. 2 whereby the employees were granted selection grade after completion 2 of 18 years of service and have placed on record an order Annex. 3 whereby surrender leave of 30 days was granted to the employees of the respondent agency under RSR. The petitioners have also referred to the seniority list of the Assistant Seeds Certification Officers and Deputy Seeds Certification Officers (Annexs. 4 & 5) and the fact that the Assistants Seeds Officers were granted promotion in the year 1996; and have alleged that for the purpose, a Departmental Promotion Committee was constituted as per Government Service Rules; and that the pay was also fixed in accordance with RSR. The petitioners have also referred to the fact that Rajasthan Civil Services (Absorption) Rules, 1969 were also made applicable in relation to certain employees. The petitioners have pointed out that the matter was represented by the employees for framing of service rules and when called upon to make representation as per Circular dated 24.03.2006 (Annex. 9), the petitioners did make their representations (Annexs. 10 & 11). While stating that since after its establishment none of the employees of the respondent No.2 had retired, the petitioners allege that for the first time they are being informed by the impugned order dated 16.01.2007 (Annex.12) that they would stand retired after completing 58 years in the month of April 2007. 3 Assailing the aforesaid order dated 16.01.2007, the petitioners have submitted that the State Government has fixed the retirement age of its employees at 60 years w.e.f. 31.05.2004 and since the service conditions of statutory bodies are being governed in conformity with RSR, various such bodies like the Rajasthan Housing Board, Vidhyut Vitran Nigam Limited, Board of Secondary Education etc. have issued circulars fixing retirement age at 60 years. According to the petitioners, their representation remain pending consideration and neither the Board of Directors nor General Body have taken decision regarding the age of superannuation; and when no such age has been fixed, the respondent No.2 has no jurisdiction to issue the questioned order (Annexure-12). The petitioners contend that the respondent No.2 could either adopt RSR, whereby the age of superannuation would be 60 years; or, if RSR is not adopted, then there is no rule regarding the age of superannuation and no employee could be asked to retire from the service at a particular age. Thus, according to the petitioners, the order Annexure-12 remains wholly illegal and unauthorised. The petitioners have filed an additional affidavit on 16.07.2007 stating that the respondent is facing deficiency of technical staff and the services of the petitioners are very much needed and the respondent has issued advertisement to assign the work of seeds certification even on contract basis. 4 The respondent No.2 submitted a reply to the writ petition on 11.04.2007 disputing the averment of the petitioners that no service rules was framed. According to the answering respondent, service rules were framed as back as in the year 1980 under the resolution dated 01.11.1980 and Regulation 41 therein pertains to compulsory retirement on attaining the age of superannuation, i.e., 55 years; and an employee could be retained in service after the date of compulsory retirement with sanction of the Board and in the interest of the Agency but not beyond the age of 58 years. The answering respondent has pointed out that the benefit of selection grade or that of surrender leave or resort to absorption rules were all granted/ adopted by separate resolutions of the Board; however, the answering respondent has denied constitution of DPC as per Government Service Rules. The answering respondent maintains that the service conditions of statutory bodies are not governed by RSR and it is a different matter that a particular body or institution on its own decides to fix the age of retirement; and merely because others choose to fix the age of retirement at 60 years, the respondent is not under an obligation to do so. The answering respondent has also submitted that a request was made by it to the Government to increase the age of superannuation from 58 years to 60 years that was not accepted by the Government; but then it is stated that that was not required to 5 be done because power to make rule vests entirely in the Board and the provision already exists in the Regulation as referred by them. On 17.04.2007, the petitioners filed a rejoinder to the reply with the submissions that the answering respondent has deliberately not placed on record a copy of the alleged resolution dated 01.11.1980; that at the request of the petitioners a photostat of the draft service Regulations 1980 had been supplied but these were only draft Regulations and have never into force; and no approval has been accorded by the Government. The petitioners have reiterated that no one has been retired by the respondent at the age of 55 years and no sanction was made by the Board for retaining any person after 55 years. The petitioners have also pointed out that the impugned order Annexure-12 does not refer to any Regulation but rather refers to some communication received from the Government. According to the petitioners, had the alleged Regulations been in force, there was no need to refer to the communication of the State Government. The petitioners have also pointed out the fact that in the last recruitments made in the year 1983 the petitioner No.3 was appointed when he was above 28 years of age, more than that provided in the Regulations. Even in relation to the suggestion of the respondent of making request to the Government for fixing the age of superannuation at 60 years, the petitioners submit that 6 if the answering respondent has decided to do so there was no need to refer the matter to the Government. On 21.04.2007, the contesting respondent filed a reply to the rejoinder denying the contention that the Regulations in question were only the draft Regulations. While placing on record a copy of the resolution dated 01.11.1980 as Annex. R2/1, it is submitted that the Regulations were approved by the Board after considering the same in detail and, according to the respondent, they became effective from the day of approval. In relation to the fact as stated by the petitioners that nobody has been retired at the age of 55 years or no sanction has been made by the Board regarding any person for retaining him after 55 years, the answering respondent has taken the pleading that the statement as made by the petitioners is vague and imaginary inasmuch as not a single person had been named who had not been retired at the age of 55 years; and, according to the respondent, even assuming for a moment that by mistake or for any other reason somebody has been kept beyond 55 years of age in service that is obviously illegal and merely because illegal action was taken by somebody in regard to someone, it would not become a law. The respondent has further gone on explaining that the referred Regulation regarding age at the time of appointment that the Regulation pertains to the age on first appointment and also makes provision of relaxation by the Agency 7 regarding particular class of candidates and hence the petitioner No.3 got appointment even when he was more than 28 years of age. In regard to the proposition made to the State Government for raising the age of superannuation, the respondent has stated that the Director prepared a note for raising the age of superannuation referring to the decisions taken by the Government from time to time in regard to several bodies; that notes were exchanged and the matter was referred to the Government but the Government disagreed. The respondent again submits that there was no need of sending the proposal to the Government; and according to the respondent, it was because of some officers taking some steps under misapprehension that the Government has any role to play. However, power to make law vests in the Board and unless the Board would make law and amend existing Regulation, the opinion of the Government one way or the other has no meaning. The answering respondent has placed on record the notes exchanged in the matter as Annex.R2/1A; and has also placed on record other resolutions of the Board of Directors as Annexs.R2/2 to R2/4 to submit that specific decision on specific issue was taken only by the Board of Directors of the respondent Agency. An additional affidavit was filed by the petitioners on 17.05.2007 with the submissions that the averments as taken 8 in the reply by the respondent No.2 about the Regulations of 1980 being in force was not correct. With reference to the fact relating to one V.S. Singh Balyan, an Assistant Seeds Certification Officer who took voluntary retirement in the month of September 2006, the petitioners submit that he was granted benefit towards 300 days’ accumulated privilege leave and that was done as per RSR whereas according to Regulation No. 45 such benefit is available only for 180 days. Another case has been referred of one K.K. Sharma that upon his death, accumulated privilege leave was granted as per RSR. On 21.05.2007, the answering respondent filed a reply to the aforesaid affidavit and, while referring to the scheme of the Act of 1966 and the Rules of 1976, it has been pointed out that as per Rule 21 of the Rules of 1976, earlier it was provided that with the approval of the Central Seeds Certification Board, the Board of Agency had the powers to frame Regulations not inconsistent with the Rules and it is only the governing Board as defined in Rule 2 (a) that is vested with powers to frame Regulations. It has then been stated that there was a ‘slight mistake’ of not obtaining approval regarding the Regulations made but the provision itself has been undone w.e.f. 30.04.2007 as per office memorandum dated 30.04.2007; and a communication from the Ministry of Agriculture, Government of India has been placed on record as Annexure-R2/5 . 9 According to the respondent, consequent to the aforesaid communication dated 30.04.2007 the Regulations have become effective automatically and in respect of all the matters where the provisions have been made therein, the Regulations will prevail. A copy of the communication issued from the Agency to various certification officers dated 28.04.2007 has been placed on record as Annex. R2/7 to submit that the Regulations have now been notified. The respondent has averred that the matters of privilege leave ought to have been disposed of according to Regulation 45 and there was a clear mistake in making reference to RSR in the orders referred by the petitioners but such mistakes would not make the RSR applicable. The respondent has also filed an application on 14.09.2007 seeking to produce additional documents on record; and along with the said application has filed a resolution said to have been adopted by the Board of the respondent Agency all over again by way of 'abundant caution' although, according to the said resolution, by way of amendment of Rule 21 on 30.04.2007 vesting the power in the Governing body of the Agency to frame Regulations, the Regulations became effective ipso facto from 01.11.1980 but the Agency had been advised to place Regulations before the Board over again though not necessary so to do. The petitioners have responded to the aforesaid 10 application with the submissions that such resolution was not bona fide and was an attempt to over reach; that the documents were created not in the normal procedure but only to create a false defence in the petition; that the alleged amendment in rule 21 of the Rules of 1976 was without authority of law; that the suggestion of the service Regulation becoming effective ipso facto from 01.11.1980 was wrong and such resolution does not confer any right in the respondent No.2. Learned counsel for the parties have made elaborate submissions with reference to the multiple pleadings filed in this case. The main plank of the submissions on behalf of the petitioners has been that the alleged service Regulations of the respondents remained only draft Regulations, never came into force, and were never even applied. The process of bringing about amendment to Rule 21 and suggesting the requirement of approval having been undone has been questioned as being wholly unauthorized and it is submitted that amendment could have been brought about only as per rule 33 of the Rules 1976. It is further submitted that even if the rule is amended, the amendment would be prospective and cannot lend retrospective force to the Regulations. It is submitted that there being no contract or service conditions requiring retirement at 58 years, the petitioners could not have been issued the impugned order Annex.12. 11 Per contra, it is contended on behalf of the respondent Agency that the petitioners could not have been continued contrary to the decision of the Board; and reaching the age of 58 years, the petitioners were required to be retired. It is submitted that there was no legal obligation on the respondent to continue the petitioners in service and even in the absence of the rules, administrative decision of course could be taken; and according to the respondent, even if it be assumed that no Regulation exists regarding the age of superannuation, the petitioners cannot be continued for indefinite time. It is submitted that the claim of the petitioner of parity with the State Government employees cannot be countenanced; and whenever a particular matter was required to be decided regarding service conditions, appropriate resolutions were taken by the Board as referred in the reply; and if the employees of the respondent Agency were at par with the State Government employees, there was no need to adopt all these resolutions. It is submitted that the respondent is a society registered under the Societies Registration Act and in the scheme of its set up it has been taking instructions from the State Government; but so far the impugned order is concerned, the same has rightly been issued by the respondent in its lawful authority and does not suffer from any infirmity. The decisions of this Court in the case of Mangi 12 Lal Shah Vs. Rajasthan Janjati Kshetriya Vikas Sangh Limited & Anr. : S.B. Civi Writ Petition No. 6732/2005, decided on 02.05.2007; and in the case of the Rajasthan State Agricultural Marketing Board Vs. Govind Narain Lata & Anr. : D.B. Civil Special Appeal No. 135/2007, decided on 01.03.2007 have also been referred. Having given a thoughtful consideration to the entire matter, this Court is clearly of opinion that the impugned order dated 16.01.2007 cannot be sustained and deserves to be set aside. Basic submission of the petitioners has been that there does not exist anything in their service conditions whereby they could be retired on attaining the age of 58 years. As per the reply submission, according to the respondent, Regulation 41 provides for compulsory retirement on an employee attaining the age of 55 years and he could be retained in service after the date of retirement with the sanction of the Board in the interest of the Agency but not beyond the age of 58 years. The petitioners contend that the said Regulations have never come into force. The respondent says that the Regulations were adopted as back as on 01.11.1980 and the mistake of not taking approval of the Central Seeds Certification Board is of no effect now when the provision in rule 21 of the Rules of 1976 has been amended as per the communication dated 30.04.2007 (Annex. R2/5); and further 13 according to the respondent the Board in abundant caution has approved the Regulations all over again on 12.09.2007 as per the documents placed with IA No. 487/2007. The propositions of the respondent, as stated in its pleadings, from all angles and at every point, fall too short of logic and legality. It remains indisputable that the so-called 'Employees Service Regulations' of the respondent Agency were not framed with the approval of the Central Seeds Certification Board. At the time of alleged making of such Regulations in the year 1980, even at the time of issuance of the impugned order dated 16.01.2007, and further, even at the time of filing of this writ petition and filing of the first reply by the respondent, the relevant of rule 21 of the Rules of 1976 would read :- “21. Powers of the Board. With the approval of Central Seed Certification Board the Board shall have the power to frame Regulations, not inconsistent with these Rules and to alter, amend and repeal them from time to time for the administration and management of the affairs of the Agency and for carrying out its objectives. (I) The preparation and sanction of the Budget estimates the sanctioning of expenditure, making and execution of contracts, the investment of the funds of the Agency and accounts and audit. (II) Procedure for appointment of the officers and other staff of the Agency. (III) The terms and tenure of appointments, emoluments, allowances, rules and discipline and 14 other conditions of service of the officers and other staff of the Agency. (IV) Powers, functions and conduct of business of such committees as may be constituted from time to time.'' It appears that after filing of the reply, rejoinder and sur- rejoinder in this writ petition, a communication was addressed by the respondent Agency to the Central Government in its Ministry of Agriculture on 28.04.2007; and in response to such communication from the respondent Agency the Government issued office memorandum dated 30.04.2007 (Annex. R2/5) purportedly amending opening paragraph of Rule 21 to read thus:- “21. Powers of the Board. The Governing Board of the Rajasthan State Seed Certification Board the Board shall have the power except in technical matters to frame Regulations, rules and to alter, amend and repeal them from time to time for the administrative and management affairs of the agency and for carrying out its objectives.” However, the procedure to bring about an amendment to the Rules of 1976 is stated in Rule 33 that reads as under:- “33. Amendment to rules :- Subject to the provisions of the Rajasthan Society Registration Act 1958 and with the prior approval of the Central Seed Certification Board these rules may be amended at any time by the resolution passed at an ordinary general meeting of the Board duly convened for the purpose and 15 supported by more than half of the total members of the Board.” Neither there is placed on record any resolution of the Board of the respondent Agency for the purpose of amendment to the Rules of 1976 nor there is stated any prior approval of the Central Seed Certification Board for such amendment. The manner in which the respondent Agency has solicited and obtained the office order dated 30.04.2007 from the Central Government concerning a matter that was subjudice before this Court gives rise to serious questions on the respondent Agency's conducting of its affairs, and of itself; but even while leaving such shortcoming in the conduct of the respondent No.2 aside, fundamental of the matter remains that such alleged amendment to Rule 21 does not appear having been brought about in accordance with the requirements of the Rules of 1976. The alleged amendment is, therefore, required to be ignored; and necessarily, the alleged Regulations of 1980 could only be treated as draft Regulations not having any operation on the service conditions of the petitioners; and in any case, they cannot be applied to the detriment of the petitioners. There remains another snag in the stand of the respondent agency. Even if it be assumed that rule 21 has been amended on 30.04.2007, it is not correct to suggest that 16 such amendment could afford post facto validity to the draft Regulations of 1980. Even if it be assumed that Rule 21 of the Rules of 1976 now exists with effect from 30.04.2007 as suggested by the respondent Agency, it would necessarily require framing of requisite Regulations and rules in its conformity. The respondent, quite conscious of the loose ground the things were sought to be suggested upon, came out, in another desperate attempt to somehow suggest legality in their action, with a so-called resolution dated 12.09.2007 suggesting as if the Regulations of 1980 ipso facto became operative with so-called amendment of Rule 21 but they were adopting the same by way of 'abundant caution'. All such propositions on the part of the respondents by no stretch of arguments could infuse validity and legality into the impugned order dated 16.01.2007. The position that no such Regulations were in force whereby and whereunder the impugned order dated 16.01.2007 could have been issued is highlighted by the very fact that the impugned order itself is said to have been issued under an order of the Government dated 10.08.2004! If Regulation 41 was operative as alleged, there was no necessity of referring to any order of the Government. Further, the position that the questioned Regulations were never employed and applied and were never treated operative is amply demonstrated by the series of significant facts and 17 factors; a few of which, of course, deserve mention. The petitioners specifically contended that if the Regulations were in force, the retirement age per Regulation 41 was 55 years but no such person was retired on reaching the age of 55 years by the respondent Agency. The contesting respondent responded to these averments with the submissions that the petitioners have not named any such person. Now, if at all