- (1.) HON'ble MATHUR, J. The Board of Management of the Rajasthan Janjati Kshetriya Vikas Sahakari Sangh Ltd. (hereinafter referred to as the Sangh) in its meeting dated 11. 1. 1993 resolved as follows:- *********** (Hereinafter referred to as the resolution No. 38.)
(2.) THE resolution aforesaid is still in currency and no service rules are yet approved to regulate service conditions of the employees of the Sangh that is a cooperative society registered under the Rajasthan Cooperative Societies Act, 1965 (now deemed to be registered under the Cooperative Societies Act, 2001 (hereinafter referred to as the Act of 2001 ). In light of the resolution No. 38 the age of superannuation for its employees was also determined by the Sangh as per the provisions of the Rajasthan Service Rules, 1951 (hereinafter referred to as the RSR ). In exercise of the powers conferred by proviso to Article 309 of the Constitution of India the Governor of Rajasthan by a notification dated 24. 5. 2004 introduced certain amendments in Rajasthan Service Rules, relevant portion of that reads as follows:- (iv)the existing Rule 56 shall be substituted by the following namely:- 56 The date of compulsory retirement of a Government servant would be the afternoon of the last day of the month in which he attains the age of 60 years. Provided that the provisions of age of compulsory retirement, as contained in this rule, shall not be applicable in the case of Government servants who are in service after attaining the age of compulsory retirement either on reemployment or on extension in service. Note:-1. A Government servant whose date of birth is the first of a month shall retire from service in the afternoon of the last day of the proceeding month on attaining the age of sixty years. 2. In case the last day of the month happens to be a closed holiday, even then the Government servant should formally relinquish charge of the office in the afternoon of that day. In view of the existing provisions of Rule 56 of the RSR the age of superannuation for the employees to whom the provisions of RSR are applicable is sixty years. The Managing Director of the Sangh on 16. 5. 2008 ordered for retirement of the petitioner from service w. e. f. 31. 7. 2008 on attaining the age of 58 years on 10. 7. 2008. Being aggrieved by the same this petition for writ is preferred with a contention that as per resolution No. 38 the service conditions of the employees of the Sangh are governed and regulated according to the provisions of the RSR and the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958), therefore, in view of the provisions of Rule 56 of the RSR the age of superannuation for the employees of the Sangh is 60 years and not 58 years. Per contra, the stance taken by the Sangh is that the Finance Secretary of the Government of Rajasthan by a circular dated 10. 8. 2004 clarified that the notification dated 24. 5. 2004 making amendments with the provisions relating to superannuation in RSR shall not be applicable to the public sector undertakings, boards and government companies, thus, the age prescribed in Rule 56 of the RSR as a consequent to its amendment is not the age of superannuation for the employees of the Sangh and the petitioner, therefore, was rightly ordered to be retired from service w. e. f. 31. 7. 2008 on attaining the age of 58 years. It is also stated by counsel for the respondent Sangh that this Court in Mangilal Shah vs. Rajasthan Janjati Kshetriya Vikas Sangh Ltd. & Anr. (S. B. Civil Writ Petition No. 6732/2005), decided on 2. 5. 2007, while dealing with the same issue held as follows:-      " The State Government enhanced the superannuation age from 58 to 60 years for its employees, however, the respondents failed to enhance the superannuation age from 58 to 60 years and, therefore, the petitioner claims similar treatment to him which is provided to the employees of the State Government. Learned counsel for the respondents submits that though the State Government has enhanced the superannuation age of its employees from 58 to 60 years, but so far as the public sector undertakings are concerned, it is open for them to enhance or not to enhance the superannuation age as it was left open to all the public sector undertakings. The State Government issued a Circular dated 24. 5. 2004 directed all the public sector undertakings, while enhancing the superannuation age of its employees from 58 to 60 years, to consider the superannuation age of the employees of the public sector undertakings; however, the respondents have considered and decided to keep the superannuation age of its employees as 58 years and accordingly the petitioner has been superannuated on completion of 58 years. Thus, admittedly, so far as public sector undertakings are concerned, it is for them to decide whether to enhance or not the age of superannuation of their employees, but at any rate, the Circular of the State Government enhancing the age of superannuation of its employees has no application at all to the employees of public sector undertakings. The State Government by the Circular dated 24. 5. 2004 has made it clear leaving it open to the public sector undertakings to consider and decide the superannuation age of their employees, which, in the instant case, after having considered by the respondents, the respondents did not think it proper to enhance the superannuation age of their employees. The employees of the respondents are not the civil servants of the State Government. The respondent Sangh is competent to prescribe the pay scales, age of superannuation and the service conditions of its employees and, therefore, it cannot be said that the age of superannuation prescribed by the State Government shall automatically apply to the employees of the respondent Sangh. The judgment aforesaid was also followed in Gopallal Bhutra vs. State of Rajasthan & Ors. (S. B. Civil Writ Petition No. 522/2005), decided on 23. 8. 2007.
(3.) HEARD counsel for the parties and considered the rival contentions. The Sangh is a cooperative society and is having supervisory control of the State as per the provisions of the Act of 2001. Its board of management vide resolution No. 38 dated 11. 1. 1993 adopted the RSR to govern and regulate service conditions of its employees. The resolution aforesaid is still in currency and no supplementary rules or regulations are yet approved to substitute the RSR. With the factual position as above, the implication of the letter dated 10. 8. 2004 is to be examined as the sole stand of the respondent Sangh is that the Finance Secretary of the Government of Rajasthan by the circular aforesaid clarified that the age of superannuation prescribed by making amendment of Rule 56 of the RSR shall not be applicable to the employees of the semi government organisations, State enterprises, boards and the corporations, thus, the age of superannuation for the employees of the Sangh is 58 years. The letter dated 10. 8. 2004 reads as follows:- ***********1. Government employees, work-charged employees and employees of Zila Parishads/ Panchayat Samitis are Covered by the Cabinet decision of 24. 5. 2004. 2. It is not appropriate for Companies in Poor financial health to increase the age of superannuation. Government companies are advised to take into account their financial health, size of labour force (existing VRS scheme etc. and whether they have pension schemes before taking a decision regarding increase in the age of superannuation. In FD's few companies may not increase age of retirement as it does not benefit them. *********** ;