JHA, CJ. - (1.) THE dispute in this batch of appeals which were heard together relates to retirement age of the employees other than class IV employees of the Rajasthan State Agricultural Marketing Board (in short, 'the Board' ). By the order impugned in Special Appeal no. 135/2007 arising from S. B. Civil Writ Petition no. 6354/2006, a learned Judge of this Court held that the retirement age of the employees of the Board is sixty years by reason of the amendment of rule 56 of the Rajasthan Service Rules, 1951 (in short, 'the RSR'), and accordingly while allowing the writ petition, directed the appellant to allow the petitioner to continue in service with all consequential benefits up to the age of sixty years. Other two writ petitions giving rise to Special Appeal nos. 260/2007 and 261/2007 were allowed following the order in S. B. Civil Writ Petition no. 6354/2006.
(2.) THE genesis of the dispute is that in terms of clause 20 (2) of the Service Bye-Laws 1977 framed by the Board, the conditions of service of the employees/officers of the Board, among other things, are governed by the Rajasthan Service Rules (RSR) and other rules relating to general conditions of service issued and amended from time to time. On 29. 5. 2004 rule 56 of the RSR whereunder the age of retirement of government servants was fixed at fifty eight years was amended and the age of retirement was raised to sixty years. According to the writ petitioners- respondents, by reason of the amendment read with clause 20 (2) of the Service Bye-Laws they are entitled to continue in service up to the age of sixty years which now is the retirement age of the employees of the Board. Upholding the case of the respondents, the learned Single Judge observed as under :- ". . . . . . State Government or the Board if intended that such an amendment for change of age of superannuation of Board employee from 58 to 60 years would not be made applicable, in that eventuality, only option left for them is to make suitable amendment in Clause 20 (2) of Service Byelaws 1977 and which can always be prospective in effect. . . . " On 22. 2. 2007, by Resolution no. 41, the Board inserted clause 35-A in the Service Bye-Laws fixing the compulsory retirement of the employees of the Board as under :- " 35-A. Compulsory retirement on attaining the age of superannuation- (i) The date of Compulsory retirement of a Board employee, other than a Board employee of class IV is the afternoon of the last day of the month in which he attains the age of 58 years. Note - A Board employee whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of 58 years. (ii)The date of compulsory retirement of a Board employee of class IV is afternoon of the last day of the month in which he attains the age of 60 years. Note - A Board employee of class IV whose date of birth is the first day of a month shall retire from service in the afternoon of the last day of the preceding month on attaining the age of 60 years. " The above amendment in the ordinary course should have brought the curtain down on the dispute, but not ready to give in, counsel for the respondents tried to wriggle out of the situation. Counsel for the appellant on their part also assailed the correctness of the judgment of the learned Single Judge. We shall first deal with the submissions advanced on behalf of the respondents. It was initially submitted that the amendment can be only prospective and therefore would not affect the existing rights of the employees and they are entitled to continue up to the age of sixty years placing reliance on a decision of the Supreme Court in Harwindra Kumar vs. Chief Engineer, Karmik, (2005) 13 SCC 300. Alternatively, it was submitted that the amended bye-law can take effect only from the date of publication in the Official Gazette. In this regard reliance was placed on Harla vs. The State of Rajasthan, AIR 1951 SC 467. It was also submitted that the amendment by implication amounts to acceptance of the respondents' case that the retirement age of the employees of the Board was sixty years; else, there was no need to insert clause 35-A in the bye-laws. It was pointed out that the observation of the learned Single Judge to the effect that the Board can amend the byelaws was in reference to clause 20 (2) which has not been amended; in stead, a new clause, clause 35-A, has been inserted which is not in accordance with the observation of the learned Single Judge. In any view, it was urged, the order of the learned Single Judge does not suffer from any error to warrant interference by the Division Bench and the appeals are fit to be dismissed.
(3.) ON behalf of the appellant it was submitted that by virtue of Section 22-M of the Rajasthan Agricultural Produce Markets Act, 1961 (in short, 'the Markets Act'), the rules applicable to the Market Committee are applicable mutatis mutandis to the Board, and as under rule 8 (c) of the Rajasthan Agricultural Produce Markets (Market Committee Employees) Service Rules, 1975, the age of retirement of employees of market committees in superior service has been fixed at fifty eight years, it would follow that the retirement age of employees of the Board too is fifty eight years. The amendment in the Service Bye-Laws, by inserting clause 35-A, it was submitted, was by way of abundant caution. The submission of the counsel for the respondents that the amendment cannot take effect unless it is published in the Official Gazette was countered with reference to the provisions of Section 25 of the Rajasthan General Clause Act. It was submitted that under Section 25 of the said Act, unless there is requirement of publication of any rule, regulation or bye-law in the Rajasthan Gazette, it is not necessary to get them published in the gazette. It was stated that the amendment has been incorporated in the Book titled 'rajasthan State Agriculture Marketing Board (Service) Bye-Laws, 1977 and an updated edition - as amended upto 22. 2. 2007 - has been duly published by the Board. The publication was in the same manner as the original 'service Bye-Laws 1977'. The said publication, according to counsel for the appellant, amounts to sufficient publication of the bye-law. Before examining the contentions of the counsel for the parties, it may be mentioned that the Board was established after amendment in the Markets Act by Rajasthan Act no. 15-A of 1973. Earlier the Act contained provisions with respect to the market committees alone. The legislature apparently considered it appropriate to create a body to exercise control and supervision over the market committees and incorporated provisions to that effect in newly added Chapter IV-A in the Act. When the Board came into existence there were no rules which could be applied to its employees but rules applicable to the employees of the Market Committee were readily available. That is how, it appears, in Section 22-M it was provided that rules applicable to the Market Committee shall mutatis mutandis apply to the Board. It is not necessary to go into the question whether the expression "applicable to the Board" would include within its ambit employees of the Board as well, for the Board soon after it came into existence framed Service Bye-Laws in 1977, referred to above, in exercise of power under clause (f) of Section 22-L. Section 22-L confers power on the Board to frame byelaws for the purposes as mentioned therein. It includes, vide clause (f), "any other purpose which, in the opinion of the Board is expected to further the interests of the Board or the market committees or lead to improvement of marketing of agricultural produce". ;