Judgment:
Ajay 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.).
3. Chapter 1V-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 Sections 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. Under Section 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. Section 22-L empowers the Board to frame its Byelaws. In exercise of powers Under Section 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.
4. 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.
5. 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 Clause 20 (2) of Service Byelaws also became applicable to the employees of the Board.
6. After the Government of Rajasthan made amendment in Rule 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. Rule 1). But on a letter dt. 19.8.04 (Ann. Rule 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. Rule 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.
7. Counsel for petitioner vehemently contends that the Board has been constituted Under Section 22-A of the Act, 1961, and is a statutory body corporate. Section 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 Rule 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 v. Chief Engineer Karmik : (2006)ILLJ452SC .
8. 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 Section 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.
9. 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. Rule 3) which certainly takes note of parity with employees of Market committee in the light of Rule 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.
10. Counsel for respondent further submits that it is the sole domain of an employer to fix age of superannuation and if it is reduced or enhanced, no employee either way has a right to assail it because there is no divesting of any of his fundamental rights or infringement whereof and no interference is required against impugned decision of the Board and so also take decision of retiring the petitioner at the age of 58 years. In support of his contention, Counsel placed reliance upon decisions of Apex Court in K. Nagraj v. State of Andh. Pra. : (1985)ILLJ444SC ; Suresh Chandra Singh v. Fertilizers Corporation of India : (2004)ILLJ1038SC ; and in Dr. Hanuman Singh v. Maharana Pratap University of Agriculture & Technology Udaipur 2005(1) DNJ (Raj.) 29 and unreported judgment delivered at Principal seat of this Court in Dr. Dhanpat Raj Bhandarivs. Union of India and Ors. (SB CWP 23/2005 decided on 15.11.2006).
11. I have considered rival contentions made by Counsel for both the parties and with their assistance scanned the material on record. To appreciate point in issue, it is necessary to have a resume of provisions - reference whereof has been made in course of arguments.
12. Chapter IV-A dealing with Sections 22-A to 22-M of the Act, 1961 was inserted by Section 12 of the Rajasthan Act No. 15-A of 1973. Chapter VI-A is a complete Code for composition, constitution and functions of the Board. Section 22-A reads as under:
22-A. State Agricultural Marketing Board.-(1) With effect from such date as the Government may be notification appoint in this behalf, there shall be established for the State of Rajasthan a Board to be called the Rajasthan State Agricultural Marketing Board.
(2) The Board shall be a body corporate having perpetual succession and a common seal and subject to such restrictions as are imposed by or under this act or any other enactment, shall be vested with the capacity to sue or to be sued in its corporate name, or acquiring, holding and disposing of, movable or immovable property, of entering into contracts and of doing all things necessary, proper or expedients for the purposes for which it is constituted.
Under Section 22-L, the Board has been empowered to frame its Byelaws for purposes incorporated therein -in exercise whereof, the Board framed Service Byelaws for regulating recruitment & conditions of service of persons appointed to the services of the Board. Relevant provisions in Section 22-L (f) of Act, 1961 reads as under:
22-L. Matters on which the Board may frame bye-laws- The Board may frame bye-laws for the following purposes, namely:(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.
Clause 20 of the Service Byelaws deals with regulation of pay, leave & allowances etc., which reads thus:
20. Regulation of pay, leave & allowance etc., - Except as provided in these bye-laws, the pay, allowances & other conditions of service of the members of services shall be regulated by:
1. The orders of the Government, if any, issued from time to time in regard to revision of pay scales equivalent to the pay scales provided in these byelaws.
2. Rajasthan Services Rules, 1951 and other rules relating to general conditions of services issued and amended from time to time.
3. The Rajasthan Travelling Allowances Rules, 1971 as amended from time to time by the Government and the Board.
4. House rent allowance rules and medical allowance Rules and other rules or orders of certain benefits as are applicable to State Government employees and amended from time to time by the Government and the Board.
A bare look at Clause 20(2) of Service Byelaws, makes it apparent that R.S.R., 1951 and other Rules relating to general conditions of services issued and amended from time to time have been made mutatis mutandis applicable to employees of the Board and general service conditions includes age of retirement, which would be the same as are applicable to Government servants under RSR 1951 unless amended by the Board in accordance with provisions of the Act, 1961 or the Service Byelaws 1977.
13. Indisputably, amendment in Rule 56 of R.S.R. 1951 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 by virtue of Clause 20(2) of Service Byelaws 1977 also became applicable to the employees of the Board. 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 and not otherwise and thus viewed, simply issuance of direction by State Government to the Board to review its decision and then acting thereon, the Board by its administrative decision considered to review age of superannuation vide resolution 23.8.01 (Ann. Rule 3) would in no manner tantamount to make amendment in its Service Byelaws, 1977. Hence submission made by Counsel for respondent Board that in view of Section 22-M of Act, 1961, Rules of market committee mutatis mutandis applies to the Board employees in my opinion is of no substance for the reason that Service Byelaws 1977 were framed in exercise of powers Under Section 22-L of the Act, 1961, are independent and the Board in its wisdom made for regulating recruitment & conditions of services of its employees and more so when there is specific provision under Clause 20(2) of Service Byelaws 1977 that other service conditions of the members of services of the Board shall be regulated by (1) the orders of the Government, if any, issued from time to time is regard to revision of pay scales equivalent to pay scales provided in these byelaws; and (2) Rajasthan Service Rules, 1951 and other Rules relating to general conditions of service issued & amended from time to time; which are ipso facto applicable to employees of the Board. In my opinion, age of superannuation is one of service conditions, which if has been amended by the Government under R.S.R. 1951, it shall also apply to employees of the Board and Market Committee service Rules, 1975 has no application in so far as it governs service conditions of employees of the Board. In Harwindra Kumar v. Chief Engineer Karmit (supra) has also examined an identical controversy relating to scope of Regn. 31 of UP Jal Nigam Engineers (Public Health Branch) Service Regulations- provision whereof are almost the same and pari materia to Clause 20 of instant Service Byelaws 1977. Reg. 31 of UP Jal Nigam Engineers (Public Health Branch) Service Regulations reads as under:
31. Besides the provisions made under these Regulations, the pay and allowances, pension, leave, imposition of penalty and other terms and conditions of service shall be governed by such rules, regulations and orders which are equally applicable to other serving government servants concerned functioning in the State.
14. Apex Court in paras 9 & 10 observed:
9. In present case, as Regulations have been framed by the Nigam specifically enumerating in Regulation 31 thereof that the Rules governing the service conditions of government servants shall equally apply to the employees of the Nigam, it was not possible for the Nigam to take an administrative decision acting under Section 15(1) of the Act pursuant to direction of the State Government in the matter of policy issued under Section 89 of the Act and directing that the enhanced age of superannuation of 60 years applicable to the government servants shall not apply to the employees of the Nigam. In our view, the only option for the Nigam was to make suitable amendment in Reg. 31 with the previous approval of State Government providing thereunder age of superannuation of its employees to be 58 years, in case, it intended that 60 years which was the enhanced age of superannuation of the State Government employees should not be made applicable to employees of the Nigam. It was also not possible for the State Government to give a direction purporting to Act under Section 89 of the Act to the effect that the enhanced age of 60 years would not be applicable to the employees of the Nigam treating the same to be a matter of policy nor it was permissible for the Nigam on the basis of such a direction of the State Government in policy matter of the Nigam to take an administrative decision acting under Section 15(1) of the Act as the same would be inconsistent with Regulation 31 which was framed by the Nigam in the exercise of powers conferred upon it under Section 97(2)(c) of the Act.
10. For the foregoing reasons, we are of the view that so long Regulation 31 of the Regulations is not amended, 60 years which is the age of superannuation of government servants employed under the State of Uttar Pradesh shall be applicable to the employees of the Nigam. However, it would be open to the Nigam with the previous approval of the State Government to make suitable amendment in Regulation 31 and alter service conditions of employees of the Nigam, including their age of superannuation. It is needless to say that if it is so done, the same shall be prospective.
15. So far as judgments on which Counsel for respondent Board placed reliance, are of no assistance. In Sureshchandra Singh, ibid, Fertilizer Corporation took its own policy decision with regard to age of superannuation. It is to be mentioned at this stage that there was no statutory provisions in Rules or Regulations or Service byelaws of the Corporation as referred to in instant case and that apart, all the time, Fertilizer Corporation was taking its own independent decision with regard to fixation of age of superannuation, which was assailed on the ground of violation of principles of equality whereas in instant case there is statutory provisions available under Clause 20 of Service Byelaws 1977 to make application of RSR 1951 and Rules pertaining to other service conditions issued & amended from time to time in cases of employees of the Board by virtue whereof amendment made by State Government was made applicable ipso facto to the employees of the Board and no independent decision was either way required to be taken by the Board. In decisions rendered by this Court relied upon by Counsel for Respondent in Dr. Hanuman Singh v. MP University of Agriculture Udaipur (supra) & Dr. Dhanpatraj Bhandari v. Union of India and Ors. (supra) there were no statutory provisions in service regulations or byelaws and there were merely recommendations duly made by University Grants Commission or Ministry of Agriculture, which were not accepted finally by the Government or the University, as the case may be, which in my opinion will be of no assistance to respondent Board.
16. Consequently, the writ petition is allowed. Orders dt. 28.4.06 (Ex.2) & 24.8.04 (Ex. 4) are hereby quashed & set aside. Respondents are directed to allow the petitioner to continue in service alongwith all consequential benefits upto age of 60 years which is the age of superannuation by virtue of Clause 20(2) of Service Byelaws, 1977. No order as to costs.