D.V. Sehgal, J. - (1.) THIS petition was originally filed by as many as six retired employees of the Punjab State Co -operative Supply and Marketing Federation Limited, Chandigarh, Respondent No. 3 (hereinafter called the MARKFED'), praying, inter -alia, for a writ of mandamus directing the MARKFED to pay them salary is lieu of unavailed earned leave to their credit up to the maximum of 180 days. When the petition came up for motion hearing before the Division Bench on 5th September, 1984, it was recorded in the order that each of the six Petitioners had an individual claim and as such no joint writ was competent and that the Learned Counsel for the Petitioners had stated that the petition should be treated on behalf of Petitioner No. 2. Notice of motion was issued to the Respondents and ultimately it was admitted on December 3, 1985, and was directed to be set down for bearing within six months.
(2.) B .D. Sharma Petitioner No. 2 was employed as Manager with the MARKFED. On attaining the age of superannuation he retired from service on 31st March, 1980. He claims that the MARKFED is an instrumentality or agency of the State Government and as such it is 'an authority' and, therefore, 'State' within the meaning of the expression in Article 12 of the Constitution of India. The terms and conditions of his service were governed by the statutory rules known as the Punjab State Supply and Marketing Co -operative Services (Common Cadre) Rules, 1967 (hereinafter called 'the Common Cadre Rules'). Section 84 -A of the Punjab State Co -operative Societies Act, 1961 (for short 'the Act') provides for framing of the Common Cadre Rules with the prior approval of the Registrar, Co -operative Societies, Respondent No. 2. Rule 4.1 stipulates that every employee shall be entitled to one day's earned leave for every 15 days of employment during the year. If an employee does not in any one year take the whole of the leave allowed to him, any leave not taken by him shall be added to the leave to be allowed to him in the succeeding year. Clause (e) of this rule before its amendment provided that if any employee is discharged or dismissed from service or leaves service during the course of the year he shall be entitled to leave with wages or wages in lieu of unavailed leave at the rates laid down in the said rule. The Punjab Government decided to allow certain relief to its employees, - -vide letter dated 15th December, 1967. The Board of Directors of the MARKFED took a decision, - -vide Annexure Petition 1 to allow to its employees the same relief as granted by the Punjab Government to its own employees. It was further decided that in future the relief allowed to its employees by the Punjab Government shall be granted to all the employees of the MARKFED automatically. In the year 1977, the MARKFED amended Rule 4.1(e) of the Common Cadre Rules, which was duly approved by Respondent No. 2. By this amendment, it was provided that wages in lieu of learned leave for every fifteen days employment subject to a maximum of 30 days shall be paid to its employees on discharge or dismissal or retirement from service or leaving the service, as the case may be. The Punjab Government, - -vide letter dated 12th September, 1978 Annexure P 2 decided to allow such payment in lieu -of unutilised earned leave to its employees? on the date of retirement subject to a maximum of 180 days and this decision was made effective from 30th September, 1977. The Board of Directors of the MARKFED following the decision of the Punjab Government approved Agenda Item No. 15 in its meeting held on 21st January, 1983 to allow encashment of unavailed earned leave to its employees on retirement to the extent of 180 days, - -vide Annexure P 3 and submitted the same to Respondent No. 2 for according approval so as to amend Rule 4.1(e) ibid. The Petitioner claims that in spite of the fact that the then Registrar, Co -operative Societies, Punjab,. Shri C.L. Bains, had approved the amendment in the Common Cadre Rules with effect from 30th September, 1977, - -vide his order dated -13th February, 1984 recorded on the file the office of Respondent No. 2 issued a letter dated 1st June, 1984 Annexure P 7, - -vide which the facility of encashment of leave was made effective from 21st January, 1983, i.e. the date when the Board of Directors of the MARKFED had approved the proposal. The Petitioner contends that, by so limiting the relief of encashment of the unavailed earned leave -to the employees retiring on or after 21st January, 1983 he has been discriminated against. He has been wrongly deprived of the facility of encashment of unavailed earned leave on his retirement on 31st March, 1980 and this action of Respondents Nos. 2 and 3 is violative of the rule of equality and equal protection of laws as also the principle of equal opportunity in the matter of employment as guaranteed by Articles 14 and 16 of the Constitution. The State of Punjab and the Registrar, Co -operative Societies, Punjab, who are impleaded as Respondents Nos. 1 and 2 to the petition, have not filed any written statement to controvert the averments made in the petition. The petition has, however, been contested by the MARKFED, Respondent No. 3.
(3.) THE assertion of the Petitioner that the MARKFED is 'an authority' and thus 'State' within the meaning of Article 12 of the Constitution has been denied. It has been asserted that the MARKFED is a co -operative society duly incorporated under the Act. On this basis, it is contended that no writ petition against it is maintainable on the ground of violation of Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution. Some preliminary objections have been taken to the effect that the Petitioner retired from service on 31st March, 1980 and the petition had been filed after nearly four years and as such it was belated. The MARKFED being a co -operative society is not amenable to the writ jurisdiction of this Court. It is further contended that the relief claimed is purely for money and for a claim of money a writ petition cannot be maintain -ed. It has not been disputed that the resolution Annexure P, 1 was passed by the MARKFED to afford the same relief to its employees which is granted in future by the Punjab Government to its own employees. It is, however, pointed out that the letter of the Punjab Government dated 15th October, 1967 related to dearness allowance only and had nothing to do with the encashment of leave. It is further contended that the Common Cadre Rules were not framed by virtue of Section 84 -A of the Act. It is, however, admitted that amendment to the Common Cadre Rules can be effected only with the approval of the Registrar, Co -operative Societies. It has been further maintained that since, - -vide letter Annexure P. 7 the amendment to Rule 4.1(e) has been made effective with effect from 21st January, 1983, the same cannot be given retrospective effect and the Petitioner cannot be allowed the facility of encashment of' unavailed earned leave since he retired long before the amendment to the said rule became operative.;