RASTOGI, J. - (1.) QUESTION arising for consideration in instant writ petition is as to whether amendment in Rule 56 of Rajasthan Civil Services made by State Government vide Notification dt. 24. 5. 2004 (Ex. 3) changing age of superannuation from 58 to 60 years can be made applicable to employees of Rajasthan State Agricultural Marketing Board whose recruitment & conditions of service are regulated in accordance with Rajasthan State Agricultural Marketing Board (Service) Bye-laws, 1977.
(2.) PETITIONER was appointed as Lower Division Clerk in Rajasthan State Agricultural Marketing Board (respondent) and while holding post of Accountant, he stood retired from service on attaining 58 years' age of superannuation on 31. 8. 06 vide order dt. 28. 4. 06 (Ex. 2. ). Chapter IV-A was inserted in Rajasthan Agricultural Produce Markets Act, 1961 ("act 1961") vide Rajasthan act No. 15-A of 1973 published in Gazette Part-IV-A Extra ordinary on 14. 7. 1973. Amended Chapter IV-A of the Act, 1961 consisted of Secs. 22-A to 22-M. S. 22-A provides that with effect from such date as the government may be notification appoint, there shall be established for the State of Rajasthan a Board to be called as "rajasthan State Agricultural Marketing Board" (`board') and by Notification dt. 6. 6. 1974, such a Board came into existence. U/s. 22-A (2) of Act, 1961, the Board shall be a body corporate having perpetual succession and a common seal, subject to such restrictions as are imposed by or under this Act or any other enactment. Chapter VI-A also provides composition of the Board, its powers, working & function, and purpose, for which it has been constituted. S. 22-L empowers the Board to frame its Byelaws. In exercise of powers u/s. 22-L (f), the Board framed Rajasthan State Agricultural Marketing Board (Service) Byelaws, 1977 ("service Byelaws") for regulating recruitment & conditions of service of its employees. Clause 20 of Service Byelaws deals with regulation of pay, leave & allowances etc. , and as per its sub-clause (2), Rajasthan Service Rules, 1951 ("rsr 1951") and other rules relating to general conditions of service issued and amended from time to time were also made applicable to employee of the Board. Under Part-VII (Misc.), Clause 30 of Service Byelaws deals with provident fund and gratuity- a bare look whereof makes it clear that prior to pension scheme came, there was a scheme of contributory provident fund applicable to members of the service of the Board and since there was no separate scheme for employees of the Board and those who have not opted for Rajasthan Agriculture Marketing Board Service (Pension) Rules, 1995, were to be governed by Rajasthan Agricultural Produce Markets (Market Committees' Employee Service) Rules, 1975 ("committee Service Rules") and in regard to gratuity, members of the service of the Board were to be governed by Rajasthan Service Rules, 1951. It appears that where the Board to the extent intended to apply Market Committee Service Rules, 1975, it was taken note of while framing Service Byelaws, 1977. The present amendment in Rule 56 of Rajasthan Civil Services has been made by State Government vide Notification dt. 24. 5. 2004 (Ex. 3) whereby age of superannuation in case of Government servant has been enhanced from 58 to 60 years, which according to petitioner, by virtue of Cl. 20 (2) of Service Byelaws also became applicable to the employees of the Board. After the Government of Rajasthan made amendment in R. 56 of RSR, 1951, the Board also in its resolution, had also enhanced age of superannuation in case of its employee from 58 to 60 years vide order dt. 29. 5. 04 (Ann. R. 1 ). But on a letter dt. 19. 8. 04 (Ann. R. 2) from the Government, the Board reviewed the matter and on its reconsideration, revoked its earlier decision for enhancing age of superannuation and restored 58 years as age of superannuation in case of its employees vide resolution dt. 22. 8. 04 (Ann. R. 3) - in pursuance whereof petitioner has been retired from service at the age of 58 years vide order dt. 28. 4. 06 with effect from 31. 8. 06.
(3.) COUNSEL for petitioner vehemently contends that the Board has been constituted u/s. 22-A of the Act, 1961, and is a statutory body corporate. S. 22-L empowers the Board to make its own byelaws - in exercise whereof, the Board framed Byelaws, 1977 for regulating recruitment & service conditions of its employees and Clause 20 of Service Bye-laws, 1977 regulates service conditions of employees of the Board and as per its sub-clause (2), R. S. R. 1951 & other Rules relating to General service conditions which have been issued and amended by the State Government from time to time have been made applicable to the members of service of the Board and no power is independently vested either with State Government or Board to lay down different general service conditions other than envisaged under R. S. R. 1951 and, therefore, once the State Government issued amendment in R. 56 of R. S. R. 1951 for change in age of superannuation from 58 to 60 years in case of Government servants, such an amendment stands made applicable to the Board employees automatically by virtue of Clause 20 (2) of Service Byelaws, 1977; as such administrative decision taking either to raise age of superannuation to 60 years or to re-consider in the light of administrative instructions of State Government and to fix it at 58 years, was beyond its competence and authority in absence of any amendment in Clause 20 of Service Byelaws, 1977, itself. COUNSEL further submits that the Board was under obligation to follow the Rajasthan Service Rules, 1951 and other Rules relating to general service conditions as issued and amended from time to time in respect of age of superannuation and as such impugned decision taken by the Board vide order dt. 24. 8. 2004 (Ex. 5) is in violation of Clause 20 (2) of Service Byelaws, 1977 and the petitioner has right to continue till 60 years which is the age of superannuation in case of Government servant. In support of his contention, COUNSEL placed reliance upon decision of Apex Court in Harwindra Kumar vs. Chief Engineer Karmik (2005 (13) SCC 300 ). Reply to the writ petition has been filed by respondent Board inter-alia and specifically averred therein that as there is no age of superannuation provided under Service Byelaws, 1977, thus in view of S. 22-M of Act, 1961, Rules applicable to a Market Committee are made applicable to the Board employees mutatis mutandis; and as per Rule 8 (c) of Market Committee Service Rules, age of retirement in case of employees of superior service is 58 years and 60 years for employees of inferior service, which mutatis mutandis applies to the Board employees, as well and in absence of any amendment in Rule 8 (c), ibid, the impugned order of the Board to fix 58 years as age of superannuation being its policy decision requires no interference. Per contra, Counsel for respondent Board contends that impugned order has been passed by the Board by taking its policy decision as to what should be age of superannuation of its employees and once the Board took final decision to fix 58 years as age of superannuation in terms of resolution dt. 23. 8. 04 (Ann. R. 3) which certainly takes note of parity with employees of Market committee in the light of R. 8 (c) of Committee Service Rules, 1975, no right of petitioner can be said to be infringed and the challenge to the impugned policy decision of the Board is beyond scope of judicial review in extra ordinary jurisdiction of this Court. ;