Sudhir Agarwal, J. - (1.) -The petitioner has sought a writ of mandamus commanding the respondents not to treat him as retired w.e.f. 1.7.2002 on completion of 58 years of age since he is entitled to continue in service till 1.7.2004, i.e., till he attains the age of 60 years.
(2.) THE facts in brief as stated in the writ petition are that the petitioner was appointed as Clerk in District Cooperative Bank, Gorakhpur (hereinafter referred to as "the Bank") on 2.5.1969 where he joined on 3.5.1969. He was promoted to the post of Junior Branch Manager on 25.9.1978 and thereafter as senior Branch Manager on 12.1.2002. THE conditions of service of the employees of Cooperative Societies are governed by U. P. Cooperative Societies Employees' Service Regulations, 1975 (hereinafter referred to as "1975 Regulations") but prior to promulgation of the said Regulations, the conditions of service of the employees used to be governed by individual contract and/or the rules framed by the respective Cooperative Societies. THE Bank entered into a contract according to the Rules and Circulars issued by the Registrar, Cooperative Societies, which was adopted by the Bank, wherein the age of superannuation of the employees of the Bank was prescribed as 60 years. It is said that a resolution was passed by the General Body of the Bank on 27.7.1958 to the effect that a detailed report from the Secretary/Managing Director of the Bank be obtained in regard to the import and effect of the conditions of service mentioned in the circular issued by the Registrar, Cooperative Societies, U. P., Lucknow vis-a-vis the conditions of service prevailing in the Bank. THE Secretary/ Managing Director of the Bank in consultation with the Employees Association after due deliberation submitted a report that the age of retirement of the employees of the Bank would be 60 years and with that modification circular issued by the Registrar, Cooperative Societies be adopted by the Bank. THE report was placed before the Committee of Management of the Bank vide resolution dated 12.10.1958 it adopted the circular of the Registrar in the light of the report submitted by the Managing Director of the Bank. However, under Regulation 24 of 1975 Regulations the age of retirement prescribed is 58 years but proviso thereto states where before commencement of 1975 Regulations, the Society at the time of appointment had entered into a contract with the employees, whereby he is entitled to be retained in service after the date he attains the age of 58 years, the provision of Regualtion 24 of 1975 Regulations shall not apply and in case of such employees, the date of superannuation shall be determined in accordance with the said contract. It is contended that since the petitioner had already executed a contract with the Bank, providing age of retirement as 60 years, as is corroborated by the Bank's resolution dated 12.10.1958, hence he cannot be retired on attaining the age of 58 years and is entitled to continue till he attains the age of 60 years. Respondents No. 1 and 2 have filed counter-affidavit stating that the date of birth of the petitioner is 2.7.1944 and he was appointed as cashier on 30.4.1969/2.5.1969. A copy of the appointment letter has been placed on record as Annexure-CA1. The petitioner after promotion to the post of Senior Branch Manager on 12.1.2002 attained the age of superannuation of 58 years on 1.7.2002 and as per Rules applicable to the Bank was allowed to retire at the end of the month, i.e., 31.7.2002 vide letter dated 4.7.2002, a copy whereof has been placed on record as Annexure-CA2. It is denied that there was any contract between the petitioner and the Bank whereunder he was entitled to continue beyond the age of 58 years and it is said that the petitioner is governed by 1975 Regulations and, therefore, liable to retire on attainment of the age of 58 years. Sri H. R. Mishra, learned counsel for the petitioner contended that in view of the averments made in the writ petition and Joshi Award, the petitioner was entitled to continue till he attains the age of 60 years. He also placed reliance on Division Bench judgments in Allahabad District Cooperative Bank Ltd. v. Lalji Srivastava, (1994) 3 UPLBEC 1701 : 1996 (1) AWC 247 ; Ram Swarup Srivastava v. Allahabad District Cooperative Bank Ltd., Allahabad and another, 2005 (2) ESC 1215 : 2005 (5) AWC 4835 and a single Judge judgment in Writ Petition No. 16365 of 2004, Sri Dhyan Chand Gupta v. District Cooperative Bank Ltd. and another, decided on 25.5.2005.
(3.) WE have heard Sri H. R. Mishra, learned counsel for the petitioner and Sri K. N. Mishra appearing for respondents No. 1 and 2 and perused the record. It is not disputed between the parties that if there existed any contract executed between the petitioner and the respondent Bank prior to enforcement of 1975 Regulations, whereunder the petitioner is entitled to continue beyond 58 years of age, he would be entitled to avail the same and Regulation 24 of 1975 Regulations would not curtail his age of superannuation. It is also not disputed between the parties that in case the matter is governed by Regulation 24 of 1975 Regulations, then the petitioner would not be entitled to continue beyond 58 years.;