CW/9824/2011 of DR. R.S. GODARA Vs STATE ANIMAL HUSBANDRY and ORS on 23 December 2011

1. D.B.Civil Contempt Petition No.156/2011Dairy Karamchari Union, Jodhpur V/s R.K.Trashal & ors.Dairy Karamchari Union, Jodhpur V/s R.K.Trashal & ors.2.D.B.Civil Contempt Petition No.162/2011Chandra Ram Faroda V/s R.K.Trashal & ors.Chandra Ram Faroda V/s R.K.Trashal & ors.

3. D.B.Civil Contempt Petition No.165/2011Bhagirath Ram Bishnoi V/s R.K.Trashal & ors.Bhagirath Ram Bishnoi V/s R.K.Trashal & ors.4.D.B.Civil Contempt Petition No.192/2011Amra Ram V/s R.K.Trashal & ors.Amra Ram V/s R.K.Trashal & ors.

5. D.B.Civil Contempt Petition No.202/2011L.D.Gupta & anr. V/s O.P.Meena & anr.L.D.Gupta & anr. V/s O.P.Meena & anr.

6. D.B.Civil Contempt Petition No.203/2011C.P.Mittal V/s O.P.Meena & ors.C.P.Mittal V/s O.P.Meena & ors.

7. D.B.Civil Contempt Petition No.207/2011Gopal Das Sharma & anr. V/s O.P.Meena & ors.Gopal Das Sharma & anr. V/s O.P.Meena & ors.

8. D.B.Civil Contempt Petition No.208/2011Ram Ratan Natani V/s O.P.Meena & ors.Ram Ratan Natani V/s O.P.Meena & ors.

9. D.B.Civil Contempt Petition No.209/2011Ramesh Chand Sharma V/s O.P.Meena & ors.Ramesh Chand Sharma V/s O.P.Meena & ors.

10. D.B.Civil Contempt Petition No.210/2011Rajesh Datt Kaushik & ors. V/s O.P.Meena & ors.Rajesh Datt Kaushik & ors. V/s O.P.Meena & ors.

11. D.B.Civil Contempt Petition No.211/2011Puran Singh V/s O.P.Meena & ors.Puran Singh V/s O.P.Meena & ors.

12. D.B.Civil Contempt Petition No.212/2011Narayan Lal Sharma V/s O.P.Meena & ors.Narayan Lal Sharma V/s O.P.Meena & ors.

13. D.B.Civil Contempt Petition No.213/2011Mohan Lal Sharma & ors. V/s O.P.Meena & ors.Mohan Lal Sharma & ors. V/s O.P.Meena & ors.

14. D.B.Civil Contempt Petition No.214/2011Om Prakash Verma V/s O.P.Meena & ors.Om Prakash Verma V/s O.P.Meena & ors.

15. D.B.Civil Contempt Petition No.215/2011Om Dutt Sharma V/s O.P.Meena & ors.Om Dutt Sharma V/s O.P.Meena & ors.

16. D.B.Civil Contempt Petition No.216/2011Kanti Chand Sharma V/s O.P.Meena & ors.Kanti Chand Sharma V/s O.P.Meena & ors.

17. D.B.Civil Contempt Petition No.217/2011Jagdish Prasad Sharma V/s O.P.Meena & ors.Jagdish Prasad Sharma V/s O.P.Meena & ors.18.D.B.Civil Contempt Petition No.221/2011Bharat Bhushan Pareek V/s O.P.Meena & ors.Bharat Bhushan Pareek V/s O.P.Meena & ors.

19. D.B.Civil Contempt Petition No.233/2011Pyare Lal Yadav V/s O.P.Meena & ors.Pyare Lal Yadav V/s O.P.Meena & ors.20.D.B.Civil Contempt Petition No.234/2011Anil Kumar Mathur V/s O.P.Meena & ors.Anil Kumar Mathur V/s O.P.Meena & ors.21.D.B.Civil Contempt Petition No.237/2011Sudish Kumar Arya V/s O.P.Meena & ors.Sudish Kumar Arya V/s O.P.Meena & ors.

22. D.B.Civil Contempt Petition No.238/2011Ramesh Chand Sen V/s O.P.Meena & ors.Ramesh Chand Sen V/s O.P.Meena & ors.23.D.B.Civil Contempt Petition No.242/2011Mohan Lal Sharma V/s O.P.Meena & ors.Mohan Lal Sharma V/s O.P.Meena & ors.

24. D.B.Civil Contempt Petition No.243/2011Purshottam Dutt Joshi & ors. V/s O.P.Meena & ors.Purshottam Dutt Joshi & ors. V/s O.P.Meena & ors.25.D.B.Civil Contempt Petition No.244/2011Murari Lal V/s O.P.Meena & ors.Murari Lal V/s O.P.Meena & ors.

26. D.B.Civil Contempt Petition No.259/2011Keshav Deo V/s O.P.Meena & ors.Keshav Deo V/s O.P.Meena & ors.

27. D.B.Civil Contempt Petition No.260/2011Jasraj Singh Ranawat V/s O.P.Meena & ors.Jasraj Singh Ranawat V/s O.P.Meena & ors.28.D.B.Civil Contempt Petition No.423/2011Shyam Bihari Tiwari V/s O.P.Meena & ors.Shyam Bihari Tiwari V/s O.P.Meena & ors.

29. D.B.Civil Contempt Petition No.573/2011Ghanshyam Dutt Sharma V/s O.P.Meena & ors.Ghanshyam Dutt Sharma V/s O.P.Meena & ors.

30. D.B.Civil Contempt Petition No.574/2011K.B.Sharma V/s O.P.Meena & ors.K.B.Sharma V/s O.P.Meena & ors.

31. D.B.Civil Contempt Petition No.575/2011Krishan Kumar Sharma V/s O.P.Meena & ors.Krishan Kumar Sharma V/s O.P.Meena & ors.

32. D.B.Civil Contempt Petition No.731/2011Bhagwan Singh Kataria V/s O.P.Meena & ors.Bhagwan Singh Kataria V/s O.P.Meena & ors.33.D.B.Civil Contempt Petition No.732/2011Mangtoo Ram Sharma V/s O.P.Meena & ors.Mangtoo Ram Sharma V/s O.P.Meena & ors.

34. D.B.Civil Contempt Petition No.733/2011Puskar Raj Sharma V/s O.P.Meena & ors.Puskar Raj Sharma V/s O.P.Meena & ors.

35. D.B.Civil Special Appeal (Writ) No.948/2011Man Singh V/s State (Animal Husbandry) & ors.Man Singh V/s State (Animal Husbandry) & ors.

36. D.B.Civil Special Appeal (Writ) No.1038/11Harikishan Soni V/s State (Animal Husbandry) & ors.Harikishan Soni V/s State (Animal Husbandry) & ors.

37. D.B.Civil Special Appeal (Writ) No.1047/2011Hanuman Das Joshi V/s State (Animal Husbandry) & ors.Hanuman Das Joshi V/s State (Animal Husbandry) & ors.

38. S.B.Civil Writ Petition No.3658/2011Devendra Singh Chouhan V/s State (Co-op.) & ors.Devendra Singh Chouhan V/s State (Co-op.) & ors.

39. S.B.Civil Writ Petition No.3940/2011Om Prakash V/s State (Co-op.) & ors.Om Prakash V/s State (Co-op.) & ors.

40. S.B.Civil Writ Petition No.4603/2011Amar Singh Jodha V/s State (Co-op.) & ors.Amar Singh Jodha V/s State (Co-op.) & ors.

41. S.B.Civil Writ Petition No.6762/2011Laxmi Chand Dangi V/s State (Co-op.) & ors.Laxmi Chand Dangi V/s State (Co-op.) & ors.

42. S.B.Civil Writ Petition No.8484/2011Dr.J.P.Kaswan V/s State (Co-op.) & ors.Dr.J.P.Kaswan V/s State (Co-op.) & ors.

43. S.B.Civil Writ Petition No.8502/2011Shanker Ram V/s State (Co-op.) & ors.Shanker Ram V/s State (Co-op.) & ors.

44. S.B.Civil Writ Petition No.9435/2011Ami Chand V/s State(Animal Husbandry) & ors.Ami Chand V/s State(Animal Husbandry) & ors.

45. S.B.Civil Writ Petition No.9814/2011D.C.Gupta V/s State (Animal Husbandry) & ors.D.C.Gupta V/s State (Animal Husbandry) & ors.

46. S.B.Civil Writ Petition No.9815/2011Buddharam Rawat V/s State(Animal Husbandry) & ors.Buddharam Rawat V/s State(Animal Husbandry) & ors.

47. S.B.Civil Writ Petition No.9816/2011Sumer Singh & anr. V/s State (Animal Husbandry) & ors.Sumer Singh & anr. V/s State (Animal Husbandry) & ors.

48. S.B.Civil Writ Petition No.9817/2011L.N.Garg V/s State (Animal Husbandry) & ors.L.N.Garg V/s State (Animal Husbandry) & ors.

49. S.B.Civil Writ Petition No.9818/2011Ajmer Zila Dairy Employees Union V/s State(Animal Husbandry) & ors.Ajmer Zila Dairy Employees Union V/s State(Animal Husbandry) & ors.

50. S.B.Civil Writ Petition No.9819/2011Harveer Sharan Sharma V/s State (Animal Husbandry) & ors.Harveer Sharan Sharma V/s State (Animal Husbandry) & ors.

51. S.B.Civil Writ Petition No.9821/2011Moti Lal V/s State (Animal Husbandry) & ors.Moti Lal V/s State (Animal Husbandry) & ors.

52. S.B.Civil Writ Petition No.9822/2011Raj.Rajya Dairy Karm.Mahasangh V/s State (Animal Husbandry) & ors.Raj.Rajya Dairy Karm.Mahasangh V/s State (Animal Husbandry) & ors.

53. S.B.Civil Writ Petition No.9824/2011Dr.R.S.Godara V/s State (Animal Husbandry)& ors.Dr.R.S.Godara V/s State (Animal Husbandry)& ors.

54. S.B.Civil Writ Petition No.9825/2011Gom Singh Rawat & anr. V/s State (Animal Husbandry) & ors.Gom Singh Rawat & anr. V/s State (Animal Husbandry) & ors.

55. S.B.Civil Writ Petition No.9826/2011Jagnnath Yogi & anr. V/s State (Co-op.) & ors.Jagnnath Yogi & anr. V/s State (Co-op.) & ors.

56. S.B.Civil Writ Petition No.9827/2011Narayan Lal Sharma & anr. V/s State (Animal Husbandry) & ors.Narayan Lal Sharma & anr. V/s State (Animal Husbandry) & ors.

57. S.B.Civil Writ Petition No.9828/2011R.C.Jain & anr. V/s State (Animal Husbandry) & ors.R.C.Jain & anr. V/s State (Animal Husbandry) & ors.

58. S.B.Civil Writ Petition No.9829/2011Bhanwar Singh Rathore V/s State (Animal Husbandry)& ors.Bhanwar Singh Rathore V/s State (Animal Husbandry)& ors.

59. S.B.Civil Writ Petition No.9830/2011Rajendra Singh Rathore V/s State (Animal Husbandry)& ors.Rajendra Singh Rathore V/s State (Animal Husbandry)& ors.

60. S.B.Civil Writ Petition No.9831/2011Kailash Singh Shekhawat V/s State (Animal Husbandry)& ors.Kailash Singh Shekhawat V/s State (Animal Husbandry)& ors.

61. S.B.Civil Writ Petition No.9832/2011Dairy Karamchari Sangh Kota & ors. V/s State (Animal Husbandry) & ors.Dairy Karamchari Sangh Kota & ors. V/s State (Animal Husbandry) & ors.

62. S.B.Civil Writ Petition No.9833/2011Narayan Das & ors.. V/s State (Animal Husbandry)& ors.Narayan Das & ors.. V/s State (Animal Husbandry)& ors.

63. S.B.Civil Writ Petition No.9834/2011Kunj Bihari Agarwal V/s State (Co-op.) & ors.Kunj Bihari Agarwal V/s State (Co-op.) & ors.

64. S.B.Civil Writ Petition No.11558/2011Sudhindra Mohan Gautam V/s State (Co-op.) & ors.Sudhindra Mohan Gautam V/s State (Co-op.) & ors.

65. S.B.Civil Writ Petition No.11561/2011Kanti Chand Bhati V/s State (Animal Husbandry) & ors.Kanti Chand Bhati V/s State (Animal Husbandry) & ors.

66. S.B.Civil Writ Petition No.11864/2011Dr.Vikram Vyas V/s State (Animal Husbandry)& ors.Dr.Vikram Vyas V/s State (Animal Husbandry)& ors.

67. S.B.Civil Writ Petition No.12514/2011Dairya Singh. V/s State (Co-op.) & ors.Dairya Singh. V/s State (Co-op.) & ors.

68. S.B.Civil Writ Petition No.12862/2011Swedesh Kumar Bhatt V/s State (Animal Husbandry)& ors.

Date of Order:-

23.12.2011

PRESENT

Hon'ble the Chief Justice Mr.Arun Mishra Hon'ble Mr.Justice Kailash Chandra Joshi

ORDER

BY THE COURT (Per Hon'ble Shri Arun Mishra, CJ)

This is second round of lis in the matter of enhancement of age ofsuperannuation of employees of the Rajasthan Cooperative DairyFederation Limited (for short “RCDF”) and various units working under itat different places in the State of Rajasthan.

The cases have chequered history. Earlier several writ applicationshave been filed before the Single Bench of this Court being S.B.Civil WritPetition No.8626/09 Dairy Karamchari Union & ors. V/s The State &ors.and 19 other writ applications which were decided by the SingleBench vide common order dated 25[th] February, 2010. In S.B.Civil WritPetition No.6581/09 which pertained to Paschimi Rajasthan DugadhUtpadak Sahakari Sang Limited, Jodhpur, the petitioners have challengedthe resolution of the Society dated 30.6.2009 keeping the age ofsuperannuation of the employees as 58 years, after noticing the factthat the Managing Director of RCDF has already increased the age ofsuperannuation from 58 to 60 years. The employees of Uttari RajasthanSahakari Dugdh Utpadak Sarsh Ltd., Bikaner have filed S.B.Civil WritPetition No.9000/09 and other writ applications questioning the orderdated 1.9.2009 issued by the Society in pursuance of the withdrawal ofthe order of the Managing Director of RCDF by which the age ofsuperannuation was increased.

It is not disputed that RCDF is the Apex Society as defined inSection 2(a) of the Rajasthan Cooperative Societies Act, 2001(hereinafter referred to as “the Act of 2001”) and other Societies ofvarious districts of Alwar, Ajmer, Barmer, Kota, Nagaur, Bikaner, Jaipur,Jodhpur, Churu, Hanumangarh etc., whose employees and unions havepreferred writ petitions, are the Cooperative Societies as defined inSection 2(i) of the Act of 2001. It was the case set up that the employeesworking in all the Societies are under the direct supervision and controlof RCDF and the RCDF is empowered to frame Service Regulations and inexercise of that power, the RCDF framed the Service Regulations known as “Rajasthan Cooperative Dairy Federation Employees (Non-Workmen)Service Regulations, 1980” (hereinafter referred to as “the Regulations of1980”). These Regulations have been adopted by various Societies fromtime to time. It was also submitted that the State Government has alsothe power to issue appropriate directions to the RCDF and otherCooperative Societies under the provisions of the Act of 2001 and inpursuance thereof, the Government issued an order on 16.6.1990 to theeffect that all the Unions (Cooperative Societies) shall adopt ModelService Rules, Cadre and Recruitment Rules, Standing Orders as suggestedby RCDF. Clause 12 of the order dated 16.6.1990 is being quoted below:- "12. That the Milk Producers Cooperative Unions shall adopt ModelService Rules, Cadre and Recruitment Rules, Standing Orders assuggested by RCDF from time to time and shall not rescind/alteror modify these rules without the prior approval of theFederation."

Clause (3) of the Model Agreement entered into was to theaforesaid effect meaning thereby all the Dairies (Co-operative Societies)agreed to follow all Service Rules and conditions prescribed by RCDF forthe employees of the Societies signing the agreement.

It was also submitted that there was demand to increase age ofsuperannuation of the employees of various Organizations, Corporations,Board, Companies etc. from 58 years to 60 years. The State Government,in pursuance of demand raised by several Organizations, issued circulardated 26.8.2008 enhancing the age of superannuation of the employeesof the Corporations, Board, Companies etc. from 58 years to 60 years

with immediate effect. The enhancement was made applicable to allthose employees who were due to retire in the month of August, 2008.Thereafter, a representation was submitted to the State Government forenhancement of age of retirement of employees of the CooperativeSocieties also. As the matter was pending before the State Government,the RCDF passed the order on 15.9.2008 to the effect that no employeeshall be retired in the month of August, 2008 and they shall continue till30.9.2008 at their respective places as it was likely that age would beenhanced from 58 to 60 years. In view of the said order, the employeesof RCDF and other Societies continued in service even after attaining theage of 58 years. Ultimately, on 17.9.2008, the Registrar, CooperativeSocieties, in exercise of power conferred by Rule 39 of the RajasthanCooperative Societies Rules, 2003 (hereinafter referred to as “the Rulesof 2003”) issued order permitting Cooperative Societies to increase ageof superannuation of employees of the Societies and in the case wherethere is no share capital of Government and the Government was notproviding any aid to the Cooperative Societies, the Board of Directorswere given liberty to enhance age of superannuation of their employeesfrom 58 to 60 years. With respect to the Societies wherein theGovernment interest is involved by way of capital investment orcontribution, the Board of Directors were directed to take decision forenhancement of age of superannuation of employees considering thatthe Society concerned is running into profit for the past three years andthere was no loss in the past three years and the number of personsworking is not beyond the sanctioned staffing strength. Even thoseSocieties could have enhanced the age of superannuation of employees, which are not running into profit for the past three years and theemployees are more than sanctioned strength, however, in such matters,cases were required to be forwarded after resolution is passed forenhancement of age, to the Registrar, Cooperative Societies to passappropriate order. Thus, enhancement of age of superannuation is madepermissible in those cases also where Societies are running into losses andnumber of employees exceeds staffing pattern.

Thereafter, a meeting of the Board of Directors of RCDF wasconvened on 15.9.2009 and in that meeting resolution No.109(13) waspassed and it was resolved that the employees shall continue to work onthe same conditions as mentioned in the order dated 30.8.2008 till30.9.2008. The Managing Director of RCDF was authorized to passrequisite order for enhancing the age of retirement upon receipt of theinformation from the Government. Thereafter, the Managing Directorissued order on 19.9.2008 enhancing the age of superannuation from 58to 60 years, which was acted upon and the employees of theCooperative Societies were not retired on attaining age of 58 years. OneRam Chandra Choudhary challenged the orders passed by the ManagingDirector of the RCDF, Deputy Secretary, Animal Husbandry, Governmentof Rajasthan and Managing Director, Ajmer Zila Dugdh Utpadak SaharkariSangh Ltd. by way of filing revision petition under section 107 of the Actof 2001 and the Minister, Cooperative Societies passed interim orderdated 29.9.2008 staying operation of the impugned orders. Passing ofresolution no.109(13) was also disputed. The State Governmentultimately set aside the orders. Then, the matters travelled to this Court at the instance of employees & union of the Societies. Validity of theorder passed on 29.7.2009 was also questioned.

The Single Bench of this Court held that the Managing Director ofRCDF had power and authority to issue orders dated 30.8.2008, 15.9.2008and 19.9.2008 to increase the age of superannuation by virtue of theNotification dated 10-11.6.2003 and further by virtue of resolutionNo.109 (13) of the Board of Directors passed in the meeting dated15.9.2008, It was further held by the Single Bench that Resolution no.109(13) was passed by the Board of Directors of RCDF in the meeting held on15.9.2008 and the Board of Directors in the meeting dated 23.10.2008,did not resolve to withdraw any of the decisions made, either by theManaging Director, RCDF in relation to the increase in the age ofsuperannuation nor the Minutes of resolution No.109(13) were rescindedor altered or modified or cancelled by the Board of Directors of theRCDF. The Managing Director of RCDF has been authorized by the StateGovernment by exercising powers under the Act of 2001 to exercisepowers of the Registrar which is in addition to the powers vested with theRegistrar. Thus, he could have exercised the powers under the Act of2001 except under sections 6, 10 to 14, 54,57,58, 61,65,66, 104 and 107.The order of the Deputy Secretary, Government of Rajasthan, AnimalHusbandry, Jaipur dated 31.8.2009 was declared illegal and consequentorders were also declared illegal. The decision taken by CooperativeSocieties in conflict with the decision of the RCDF and resolution No.109(13) dated 15.9.2008 was declared to be illegal. The superannuation ofemployees on attaining the age of 58 years was declared to be illegal and it was directed that they be allowed to continue in service upto the ageof 60 years with all consequential benefits.

The order of the Single Bench was questioned before the DivisionBench of this Court by way of filing intra-court appeals, which weredisposed of by common judgment dated 8.3.2011 passed in D.B.CivilSpecial Appeal No.165/2010 Pashimi Raj.Dugadh Ut.S.S.Ltd. V/sKantilal Ojha and ors. & 93 other matters.It was submitted that therewas tripartite agreement between the parties, according to which,decision taken by RCDF has to be adopted by various Societies. However,it was not disputed before the Division Bench that various aspectsspecified by the Registrar, Cooperative Societies were not taken intoconsideration by RCDF. The Division Bench observed that the decision wastaken by the State Government for enhancing the age of superannuationfrom 58 to 60 years for its employees and initially the intention of theRCDF and Societies was to enhance the age, that was wholesome. It wasfurther observed by the Division Bench that enhancement of age ofsuperannuation would have been in accordance with the current realitiesand when age of superannuation has been enhanced by the StateGovernment for its employees, but at the same time it was necessary totake into consideration the directions issued by the Registrar,Cooperatives Societies on 17.9.2008 and since directions were notconsidered, it was agreed by the parties that the matter be reconsideredby RCDF and the Societies. Earlier otherwise there were allegationswhether the resolution was passed or not. The said dispute shall notinfluence the decision to be taken by the RCDF etc. It was alsoemphasized by the Division Bench that they have to take decision fully considering the current realities and also the fact that the StateGovernment has enhanced the age of superannuation of its employeesand various other bodies, Corporations, Board, Companies etc. It wasfurther emphasized that decision cannot be taken arbitrarily orcapriciously or in whimsical manner, but it has to be taken in accordancewith law and it should be so reflected in the action so taken.

Thereafter, RCDF has taken the decision on 31.3.2011 not toenhance the age of superannuation on the ground that Dairy Federationhas remained in accumulated losses from the years 1999-2000 to 2007-2008. The net profit for the years in question was to be taken intoconsideration and that too for the past three years. This aspect has beentotally ignored though mentioned in the tabular form. What hasimpressed upon RCDF is accumulated losses from the years 1999-2000 to2007-08 which was not the relevant consideration even in the directivesissued by the Registrar, Cooperative Societies on 17.9.2008. It has alsobeen mentioned that the benefit of Sixth Pay Commission has been givenby RCDF to its employees, as such, it is necessary to reduce the expenses.It has also been considered that in case the age is enhanced, it wouldcause financial burden. Though RCDF was in accumulated profit ofRs.21.46 lacs in the year 2008-09 and of Rs.837.86 lacs in the year 2009-10, decision has been taken not to enhance the age of superannuation.Several contempt petitions have also been filed alleging violation of theorder passed by the Division Bench of this Court. It has been contendedthat inspite of the categorical order passed by this Court to take intoconsideration the relevant aspects, they have not been considered andvarious resolutions have been passed in violation thereof. The resolutions so passed are against the spirit of the order passed by this Court. Thus,violation of the order passed by this Court has been committed, as such,respondents are liable to be punished under the Contempt of Court Act.Certain intra-court appeals have also been preferred in which dismissal ofthe writ application has been questioned.

It was submitted by Mr.M.R.Singhvi, Sr.Advocate with Mr.ManishParihar, Mr.Kuldeep Mathur, Mr.I.R.Choudhary, Mr.A.K.Rajvanshi,Mr.Rajendra Soni, Mr. Mohit Soni, Mr.Man Mohan Mathur, Mr.S.D. Vyas,Mr.M.S.Purohit, Mr.C.P.Sharma, Mr.Himat S.Bikarwar, Mr.A.S.Rathore,Mr.Vijay Kumar Vyas and Mr.Kuldeep Verma appearing on behalf of thepetitioners/appellants that decision taken by the RCDF and variousSocieties is not in tune with the directions issued by this Court and eventhey are violative of the order of the Registrar, Cooperatives Societiesdated 17.9.2008 issued under Rule 39 of the Rules of 2003. It was alsosubmitted that RCDF has framed Model Rules which have been adopted byvarious Societies, thus, it was for the RCDF to take decision and as pertripartite agreement clause 12, it was for the various Societies to adoptthe same. Earlier the RCDF has taken the decision and thereafter,Societies have adopted the same. It was also submitted that the age ofsuperannuation was required to be enhanced as RCDF is earning netprofit. It was also submitted that several Societies are running into profitbut accumulated losses have been taken into consideration and not thenet profit. The fact of enhancement of age of superannuation by theState Government for its employees and various bodies, Corporations,Board, Companies etc. and there should be parity amongst employees,has not been taken into consideration. It was also submitted that Registrar could not have made the financial condition to be finaldeterminative factor for deciding whether age of superannuation shouldbe enhanced or not. Mere fact that some of the Societies are running intosome losses, cannot be a ground not to enhance age of superannuation.It was also submitted that staffing pattern has also not been taken intoconsideration by various Societies. There is no uniformity in the decisionwhich has been taken and even where the Societies are running intoprofit, decision was taken not to enhance the age of superannuation onthe ground that there were accumulated losses whereas net profit wasappropriate consideration. It was further submitted that for consistencyof decision, RCDF may be directed to take afresh decision as RCDF iscompetent to frame bye-laws and services rules have been framed by itfrom time to time which have been adopted by various Societies.

The learned counsel for the petitioners-appellants have alsosubmitted that RCDF was running into profit in the years 2008-09 and2009-10, but the same was not considered and the accumulated losses inthe years 1999-2000 to 2007-08 were taken into consideration to keepthe superannuation age as 58 years. Hence, the decision is illegal. In thecase of Alwar Society, it was submitted that pursuant to the directionsissued by this Court, decision was taken by the Board of Directors on22.3.2011 to enhance the age of superannuation from 58 to 60 yearsconsidering the fact that it was running into net profit in the years 2005-06, 2006-07 and 2007-08 and number of employees working was below thesanctioned staffing pattern. However, the Registrar, CooperativeSocieties vide order dated 15.6.2011 illegally set aside the said decisionon the ground of accumulated losses, though Society is running into net

profit. It was also submitted that in the cases where the Societies wererunning into profit and number of staff was within the sanctioned staffingpattern, there was no further power with the Registrar in view of hisorder dated 17.9.2008 to pass order and disapprove the resolution of theSocieties. It was further submitted that Kota Society was also runninginto profit, but accumulated loss has been taken into considerationinspite of the fact that by now the accumulated loss which was causedearlier has also been nullified and there is no accumulated loss as ontoday and the number of staff working is also as per the sanctionedstrength. Thus, the decision taken by Kota Society to keep the age ofsuperannuation as 58 years was without due application of mind andwithout mentioning any reasons whatsoever. In the case of BarmerSociety, it was submitted that though it remained in net profit in theyears 2007-08, 2008-09 and 2009-10 and number of employees workingwas 37 as against the sanctioned strength of 78 and thus, only 48%employees were working, the same were not considered andaccumulated loss has been taken into consideration for denying theenhancement of age of superannuation from 58 to 60 years. Later on,when contempt petitions were filed, matter was reconsidered and loss ofJodhpur Society for the years 2005-06 has been taken into considerationand reasons have been supplemented by passing subsequent resolutionon 1.6.2011. Hence, the decision taken is illegal. With respect to NagaurSociety, it was submitted that various aspects have not been taken intoconsideration and decision to keep the age of superannuation as 58 yearswas taken in a mechanical manner. With respect to Ajmer Society, it wassubmitted that for the last 20 years, no recruitment has been made, as such, as against the sanctioned strength, 215 workers were workingthrough contractors on contract basis. The accumulated loss in the lastthree years has been taken into consideration and not the net profit andloss. Besides, it was considered that in case age of superannuation wasincreased, it would put financial burden. The decision is based onirrelevant considerations and hence, the same is liable to be set aside.With respect to Hanumangarh Society, it was submitted that though itwas running into profit and its financial condition was good, but only tokeep competition with other Societies, it has been decided not toenhance the age of superannuation. It was also taken into considerationthat if new incumbents are inducted, that may be beneficial to theSociety. Counsel submitted that it could not be said to be relevant factorto be considered in accordance with law; on the one hand, experiencedpersons are available, they are being discontinued and in order to inductnovice, decision has been taken not to enhance the age ofsuperannuation as if new incumbents were to provide employmentmarket. Intention is to induct new incumbents of their choice. It hasbeen ignored that the persons, who are being discontinued, areexperienced hands and they have spent whole of their life in the servicesof Societies and they are not being provided their just dues ofenhancement of age of superannuation from 58 to 60 years. Hence, thedecision cannot be said to be appropriate or based on legally sound basis.With respect to Bikaner Society, it was submitted that while passing theresolution dated 24.3.2011, opinion of Legal Advisor has been referred toand thereafter, without applying mind to any of the factors and withoutmentioning any reasons whatsoever, the decision has been taken not to

Analysis

enhance the age of superannuation. Thus, the decision is bereft ofreasons and consideration of the relevant factors required to beconsidered in view of the observations made in the order passed by thisCourt. With respect to Jaipur Society, it was submitted that though theSociety was running into profit in the years 2005-06, 2006-07 and 2007-08, decision has been taken not to enhance the age of superannuation.The accumulated loss has been worked out so as to deny theenhancement of age of superannuation, which was not the relevantconsideration. It was also submitted that the decision has beeninfluenced by Shri O.P.Meena, who was bent upon in all cases to ensurethat resolution enhancing age from 58 to 60 years was not carried out aswhen he was appointed as Managing Director of RCDF, he has questionedthe resolution which was passed by the Board of Directors on 15.9.2008and also the resolution which was passed by the predecessor ManagingDirector. The Registrar has also been influenced by Shri O.P.Meena asShri O.P.Meena has also contended that the employees were not entitledfor enhancement of age of superannuation and since he was ManagingDirector of RCDF and was also Principal Secretary of Animal Husbandryand Dairy, the Registrar being subordinate in rank felt bound by thedictates of Shri O.P.Meena. Thus, the observations made by the DivisionBench and the Single Bench of this Court have been deliberately floutedby the respondents. Hence, it is a suitable case where appropriatepunishment be inflicted upon the concerned individuals including ShriO.P.Meena, who is one of the respondents in the contempt applications.With respect to Jodhpur Society, it was contended that the decisiontaken on 22.3.2011 is illegal as accumulated loss has been taken into consideration. The number of regular staff working is 176 as againstsanctioned strength of 178 and 5 persons are on deputation. Theworkers working on contract basis have been considered, who are notwithin the sanctioned staffing pattern. Besides, the financial conditioncould not be said to be the sole criteria to deny the benefit ofenhancement of age of superannuation. Hence, the decision taken isillegal. Earlier age was increased by the Society pursuant to theresolution of RCDF and now illegal decision has been taken. With respectto Churu Society, it was submitted that though earlier age ofsuperannuation was enhanced, accumulated losses are being taken intoconsideration including the burden to be imposed in case age ofsuperannuation is enhanced. Thus, the decision not to enhance the ageof superannuation has been taken in a mechanical manner and onirrelevant consideration and hence, it is bad in law.

Mr.G.K.Garg,Sr.AdvocatewithMs.AnitaAgarwal,Mr.P.P.Choudhary, Sr.Advocate with Mr.Amit Dave, Mr.Rajesh Joshi,Mr.C.S.Sharma, Mr.B.P.Mathur, Mr.D.K.Parihar, Mr.Rupin K.Kala,Mr.Ashvini Gehlot & Mr.B.S.Sandhu appearing on behalf of therespondents have submitted that the decision so taken is in accordancewith law and no case is made out so as to interfere in the writapplications, special appeals & contempt applications. It is open to theemployer whether to enhance the age of superannuation. There is noillegality in the decision not to enhance the age of superannuation. Thedirections issued by this Court have been duly complied with and theorder has not been violated. It was also submitted that the writ petitionsfiled by the petitioners against the Cooperative Societies & Diary Federation are not maintainable as they do not fall within the definitionof “State” under Article 12 of the Constitution of India.

Shri P.P.Choudhary, Sr.Advocate has also submitted that it was notappropriate for the Registrar to put financial rider in the order dated17.9.2008. The Registrar ought to have specified conditions of Service inhis order and the State Government is also having the power to issuedirections under section 123 of the Act of 2001 to enhance the age ofsuperannuation, which should not have been left at the discretion of theindividual Society to take a decision in the matter. Appropriate coursewas that State Government ought to have issued mandate or theRegistrar should have specified what should be the age of superannuationwhether it should be 58 or 60 years. It was also submitted that tripartiteagreement cannot be said to be binding upon the Societies. When theyhave adopted the Rules framed by RCDF, it could not be said that theRules framed by RCDF are binding upon them and it is open to take adecision whether to adopt them or not. Mere adoption of Rules framedby RCDF could not be said to be denuding the Societies of their power totake independent decision. Considering overall circumstances andinterest of the Societies, which is supreme, decision has been taken notto enhance the age of superannuation which does not call for anyinterference by this Court in the writ applications, special appeals &contempt applications.

We find that inspite of the fact that RCDF and some other Societiesare in-fact running into profit and the number of employees working inthe Societies are as per the sanctioned staffing pattern, the decision hasbeen taken not to enhance the age of superannuation. In several cases, we find that accumulated losses have been taken into consideration,which could not have been taken into consideration and it cannot be solecriteria to deny benefit of enhancement of age of superannuation, inview of the directives issued by the Registrar of the Cooperative Societiesunder Rule 39 of the Rules of 2003 vide order dated 17.9.2008. The said order dated 17.9.2008 is being quoted below:- “व भ ग द र एतद ब ध म प म ज र “मसत आद”श क अततल त"तकरत ह$ए र जस% न “हक”र ����इट तनयम, 2003 क तनयम 39(4) क अनतग त र जय क, व भभनन “हक”र ����इटटय क क भम क (अधधक ररय /कम च ररय ) क, अधध��व2 क, आय$ क “मबनध म” तनमन ककततनद5श ज र ककय ज त ह6:-1र जय क, ऐ 8 “हक”र ����इटटय 9 जजनम र जय “रक”र क, टहस��पज8 अ%�� अन$द न आटद क रप म र जक,य टहत तनटहत नह ह<, उनम��स% क “च”लक मण?ल “स%” क टहत क दवAगत रखत ह$ए अपन सतर अपन क भम क क, अधध��व2 क, आय$ 58 “2” — बढ कर अधधकतम 60 “2”तक करन क “ब”ध म तनर य ल “क”ग ।

2र जय क, ऐ 8 “हक”र ����इटटय 9, जजनम र जय “रक”र क,टहस�� पज8 अ%�� अन$द न आटद क रप म र जक,य टहत तनटहत ह6, उनम क भम क क, अधध��व2 क, आय$ क “ब”ध म तनमन न$��र पकGय अपन य8ज न8 अप कIत ह6:- (क) ऐ 8 “हक”र ����इटटय 9, जजनम व गत त8न व त8य “2K म” ह तननह रह ह< अ% त उनम व गत त8न व त8य “2K म” तनरनतर श$द ल भरह ह< त% ��% ह जजनम क य रत क भम क क, “खय” उनक स 8कN तसटOफ सQ न% — अधधक नह ह<, उनक “च”लक मण?ल “स%” क टहत क 58दवAगत रखत ह$ए अपन सतर — अपन क भम क क, अधध��व2 क, आय$ “2” — बढ कर अधधकतम 60 “2” तक करन क “ब”ध म तनर य ल��क ग ।(ख) ऐ 8 “हक”र ����इटटय , जजनम व गत त8न व त8य “2K म” — कक 8भ8 “2” ह तन क, जस%तत रह ह , अ%�� जजनम क य रत क भम क क, खय��स% क, स 8कN त सट फ सQ न% — अधधक ह<, उनक “च”लक मण?ल यटद स% क क र ब र आटद वय पक टहत क दवAगत रखत ह$ए अपन क भम क क, अधध��व2 क, आय$ 58 “2” — बढ कर अधधकतम 60 “2” तककरन क, अन$श करत ह<, त “च”लक मण?ल क इ आशय क पसत��क “स%” क म$खय क य क र तनध ररत प रप म अध हसत Iरकत द र प धधकN त अधधक र क प व2त कर ग ।

प धधकN त अधधक र प प पसत��� क “ब”ध म व भ ग8य तनद5श क प लनकरत ह$ए अधTम आ शयक क य ह कर ग । ऐ 8 “स%”ओ क भलय “स%”क, ओर — प व2त ककय ज न ��ल पसत�� क प रप ए प धधकN तअधधक र द र क, ज न ��ल क य ह क “ब”ध म पN%क — तनद5श ज र ककय ज रह ह6।"

It is apparent from the aforesaid order issued by the Registrarunder Rule 39 that with respect to Cooperative Societies in which the

Government interest is involved by way of capital investment orcontribution and there was no loss in the past three years and there wasnet profit in the past three years and the number of persons working wasnot exceeding the sanctioned staffing strength, the Board of Directorswere directed to take a decision for enhancement of age ofsuperannuation of employees from 58 to 60 years as provided in para 2(ka). Thus, the decision not to enhance the age of superannuation in thecases where Societies are running into profit and there was no loss andnumber of employees working was within the sanctioned staffing pattern,could not be said to be in accordance with law. It is clearly arbitrarydecision. Irrelevant factors have been taken into consideration such asgrant of benefit of Sixth Pay Commission and that it would have beenappropriate to induct new incumbents and continuation of employeeswould cause financial burden, though they are experienced hands andspent whole of their life in the services of Society. The decision hasbeen taken by the State Government to enhance age of superannuationof its employees and Corporations, Board, Companies and other bodiesand thereafter, in pursuance thereof, the Registrar, CooperativeSocieties has issued order dated 17.9.2008, which has a statutory forcehaving been issued under Rule 39 of the Rules of 2003. Even the Registrarwas bound by the same and he could not depart arbitrarily as done in thecase of Alwar Society. It appears that decision has not been takenbonafide. When the Society of Alwar was running into profit for the pastseveral years and its Board of Directors has passed resolution to enhanceage of superannuation from 58 to 60 years and the number of employeesworking was below sanctioned strength, there was no rhyme or reason for the Registrar to consider the accumulated loss which in fact appearsto have been adopted to make a devise to deny just benefit ofenhancement of age of superannuation. There was no justification forthe Registrar to set aside the resolution of Board of Directors of AlwarSociety. Even as per order dated 17.9.2008, the Board of Directors wereauthorized to take decision at their own level as mentioned in para 2 (ka)and only those cases were to be forwarded to the Registrar where therewas loss in any of the past three years and number of staff working wasmore than the sanctioned strength and in such cases also, it waspermissible to enhance the age of superannuation but with the approvalof the competent authority.

In the case of Jaipur Society, we find that the said Society wasrunning into profit in the years 2005-06, 2006-07 and 2007-08. Asregards staffing pattern, the sanctioned strength was 488, against which397 persons were working and 21 persons were on deputation and thus,total employees working were 418. However, the contract workers havebeen taken into consideration, which was not relevant consideration.The regular employees were not exceeding the sanctioned strength andinspite of running into profit, by adopting one reason or the other, it hasbeen mentioned that there is loss which is incorrect as Society wasrunning into profit of Rs.75.59 lacs in the year 2005-06, Rs.82.26 lacs inthe year 2006-07 and Rs.106.54 in the year 2007-08. Thus, decision notto enhance the age of superannuation was illegal.

With respect to RCDF, we find that it was running into profit witheffect from 2000-01 till 2009-10. The yearly profit/loss and accumulated profit/loss of RCDF from 1999-2000 to 2009-10 is quotedbelow:- ________________________________________________________________

Issues

Though RCDF was running into profit from 2000-01 till 2009-10 andin the years 2008-09 and 2009-10, there was accumulated profit, but ithas been considered that from 1999-2000 to 2007-08, there wereaccumulated losses, which was not the relevant consideration. The netprofit was to be considered for the past three years. Besides,consideration has also been made to the expenditure being incurred in TAand DA. Obviously when the employees are serving, these expenses are tobe incurred. By mentioning these expenditure and grant of benefit ofSixth Pay Commission, enhancement of age of superannuation could nothave been denied. Inspite of accumulated profit of 21.46 lacs in 2008-09and 837.86 lacs in 2009-10, decision has been taken as if respondentswere bent upon not to enhance the age of superannuation, that too inviolation of the spirit of the order passed by this Court and the directives issued by the Registrar, Cooperative Societies. The decision thus cannotbe said to be in accordance with law.

When we come to the resolution passed by the Bikaner Society, wefind that inspite of clear directions issued by this Court to consider therelevant factors, nothing has been taken into consideration and a laconicresolution has been passed on 24.3.2011 without consideration of therelevant aspects. There is a reference in the resolution only to the legalopinion sent by the counsel and the contents of the order of Registrardated 17.9.2008 and thereafter, without considering relevant factors andaspects, the decision in few line has been taken not to enhance the ageof superannuation. There is clear violation of the order passed by thisCourt. It was not open to the respondents to take such decision in acavalier manner and fashion. They are supposed to apply their mind tothe factors mentioned by this Court in the order which was passed andreasons cannot be supplemented later on as held by the Apex Court inMohinder Singh Gill & anr. V/s The Chief Election Commission and ors.( AIR 1978 SC 851) . The Apex Court in that case has held that when astatutory functionary makes an order based on certain grounds, itsvalidity must be judged by the reasons so mentioned and cannot besupplemented by fresh reasons in the shape of affidavit or otherwise.Otherwise, an order bad in the beginning may, by the time it comes tocourt on account of a challenge, get validated by additional grounds laterbrought out. The Apex Court laid down thus:- “8.The second equally relevant matter is that when a statutoryfunctionary makes an order based on certain grounds, its validitymust be judged by the reasons so mentioned and cannot besupplemented by fresh reasons in the shape of affidavit orotherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated byadditional grounds later brought out. We may here draw attentionto the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC16) (at p.18):

“Public orders publicly made, in exercise of a statutoryauthority, cannot be construed in the light of explanationssubsequently given by the officer making the order of whathe meant, or of what was in this mind or what he intendedto do. Public orders made by public authorities are meantto have public effect and are intended to affect the actingand conduct of those to whom they are addressed and mustbe construed objectively with reference to the languageused in the order itself.”

Orders are not like old wine becoming better as they grow older.A caveat.”

Thus, decision has been taken by the Society of Bikaner in amechanical manner, without due consideration of the relevant factorsand hence, it is in violation of the order passed by this Court.

With respect to Ajmer Society, resolution has been passed againwithout taking into consideration the net profit; accumulated loss in2005-06 has been taken into consideration, which was not relevantconsideration. For the last 20 years, no recruitment has been made in theSociety and the work was being taken from contract employees. It hasalso been considered that it would be appropriate to induct newincumbents and there would be financial burden in case superannuationage is enhanced. It is not relevant consideration. It appears that theSociety was running into profit which has not been taken intoconsideration and accumulated loss has been taken into consideration.It has been considered that more payment of retiral dues includinggratuity etc. will be required to be made in case age is enhanced. It could not be made the basis to deny the benefit of enhancement of ageof superannuation. The relevant factors and considerations which havebeen pointed out, have not been taken into consideration. Thus, it isapparent that the said Society has also acted arbitrarily and has notcomplied with the order passed by this Court in pith and substance.

With respect to Nagaur Society, it appears that withoutmentioning relevant factors and considerations as directed by this Court,decision has been taken not to enhance the age of superannuation.Accumulated loss alone could not be a ground to deprive the benefit ofenhancement of age of superannuation, which fact was also mentioned inthe directives issued by the Registrar vide order dated 17.9.2008. Eventhe years in which loss has been incurred have not been mentioned. Thus,decision was taken without due application of mind to the relevantfactors and staffing pattern etc. and hence, it cannot be said to beappropriate and passed on due consideration of factors in the light ofthe order passed by this Court.

With respect to Churu Society, the decision dated 23.2.2011 is alsotaken on the consideration of accumulated loss upto the year 2009-10. Ithas also been considered that in case the age of superannuation isenhanced, it would put financial burden. It is not a ground to denyenhancement of age of superannuation. Other relevant factors, whichwere directed to be considered in the order passed by this Court, havenot been taken into consideration. There was deficiency in sanctionedstrength of staff, as per staffing pattern, still decision has been takenarbitrarily. Accumulated loss alone could not have been a ground not toenhance the age of superannuation. Thus, decision cannot be said to have been taken on due consideration of relevant factors andconsiderations as directed by this Court.

In the case of Hanumangarh Society, it is apparent that theSociety is running into profit both in the case of net profit as well asaccumulated profit. The net profit and accumulated profit from 2005-06to 2007-08 are as follows:-

Though in the resolution it has been mentioned that at presentfinancial condition of the Society is very good, but only on the groundthat it was to compete with other Societies, decision has been taken notto enhance the age of superannuation. This can be considered to be atotally arbitrary decision. When it is running into profit, denial ofenhancement of age of superannuation on the ground that it was tocompete with other societies, was not justified and such decision iscontrary to the statutory directives as well as the order passed by thisCourt.

With respect to Barmer Society, it is shocking and surprising thatthe respondents have tried to inter-mingle with relevant data whilepassing second resolution on 1.6.2011 to justify their illegal action takenvide resolution dated 22.3.2011. Though it remained in profit of Rs.31.42lacs in the year 2007-08, Rs.1.52 lacs in the year 2008-09 and Rs.7.44

lacs in the year 2009-10 and number of employees working was 37 asagainst the sanctioned strength of 78 and thus, only 48% employees wereoccupying the posts and rests posts were vacant, the same were notconsidered and surprisingly and shockingly only accumulated loss hasbeen taken into consideration which cannot be said to be criteria todeny the benefit of enhancement of age of superannuation from 58 to 60years, in view of the statutory directives which were issued pursuant tothe decision taken by the State Government enhancing the age ofsuperannuation of its employees, Corporations, Board, Companies andother bodies owned and controlled by the State. The decision is in totalviolation of the order passed by this Court. When contempt petitionswere filed, matter has been considered afresh and figure of JodhpurSociety has been taken into consideration when it was running into loss in2005-06. It could not have been done by them. Various other aspectsemphasized by this Court have not been adhered to. Thus, decision sotaken not to enhance the age of superannuation is illegal and arbitrary.

With respect to Jodhpur Society, though it was running into profitin the years 2006-07 and 2007-08, but while passing the resolution,accumulated loss of 120.25 lacs has been taken into consideration. Thenumber of regular staff working is 176 as against sanctioned strength of178 and 5 persons are on deputation and thus, total figure was of 181.Besides, the workers have been taken on contract basis which shows thatthe work has increased and the contract workers have been taken intoconsideration, which could not have been made a ground to deny thebenefit of enhancement of age of superannuation as regular employeesare more or less as per the sanctioned strength. The decision has not been taken in a pragmatic manner. Grant of benefit of sixth paycommission could not have been made a ground to deny enhancement ofage of superannuation. Hence, the decision cannot be said to beappropriate and based on relevant consideration and factors as directedby this Court.

With respect to Kota Society, it was also running into profit andthe staff working is also as per the sanctioned strength, but accumulatedloss has been taken into consideration, which cannot be said to be solecriteria to deny the benefit of enhancement of age of superannuation.Thus, the decision has been taken in an arbitrary manner and withoutdue application of mind to the relevant factors, aspects andconsiderations as directed by this Court.

It also appears that the decision not to enhance the age ofsuperannuation appears to have been influenced by Shri O.P.Meena, whohas made prestige issue as earlier the Single Bench of this Court has notaccepted his submission that resolutions were forged or fabricated one.In fact, they were upheld by the Single Bench. As relevant aspects werenot taken into consideration by the Managing Director, this Courtdirected reconsideration of the matter. It cannot be ruled out that ShriO.P.Meena, who was Managing Director of RCDF, has influenced thedecision taken by various Societies and since he was at the helm of theaffairs also being Principal Secretary of Animal Husbandry and Dairy,decision has been taken otherwise than the order issued by the Registrar.

We deem it appropriate to place on record the decision of theApex Court cited on behalf of the petitioners-appellants in HaryanaState Minor Irrigation Tubewells Corporation & Ors. V/s G.S.Uppal &

ors. (AIR 2008 SC 2152) wherein it was observed that revised pay scalewas given to Engineers of State Government as also to Engineers of Govt.Corporation and anomaly in pay scale of Govt. Engineers rectifiedsubsequently and said rectification would also be applicable toCorporation Engineers to maintain parity and moreso when said benefitwas extended to all other employees of Corporation, the fact thatCorporation was running under losses is immaterial. The Apex Court haslaid down thus:-

“24. The plea of the appellants that the Corporation isrunning under losses and it cannot meet the financial burdenon account of revision of scales of pay has been rejected bythe High Court and, in our view, rightly so. Whatever may bethe factual position, there appears to be no basis for theaction of the appellants in denying the claim of revision ofpay scales to the respondents. If the Government feels thatthe Corporation is running into losses, measures of economy,avoidance of frequent writing off of dues, reduction of postsor repatriating deputationists may provide the possiblesolution to the problem. Be that as it may, such a contentionmay not be available to the appellants in the light of theprinciple enunciated by this Court inM.M.R. Khan v. Union ofIndia[1990 Supp. SCC 191] andIndian Overseas Bank v. I.O.B.Staff Canteen Workers' Union [(2000) 4 SCC 245]. However, solong as the posts do exist and are manned, there appears tobe no justification for granting the respondents a scale of paylower than that sanctioned for those employees who arebrought on deputation. In fact, the sequence of events,discussed above, clearly shows that the employees of theCorporation have been treated at par with those inGovernment at the time of revision of scales of pay on everyoccasion. It is an admitted position that the scales of pay wereinitially revised w.e.f. April 1, 1979 and thereafter on January1, 1986. On both these occasions, the pay scales of theemployees of the Corporation were treated and equated atpar with those in Government. It is thus an established factthat both were similarly situated. Thereafter, nothingappears to have happened which may justify the differentialtreatment. Thus, the Corporation cannot put forth financialloss as a ground only with regard to a limited category ofemployees. It cannot be said that the Corporation isfinancially sound insofar granting of revised pay scales toother employees, but finds financial constraints only when itcomes to dealing with the respondents, who are similarly placed in the same category. Having regard to the wellreasoned judgment of the Division Bench upholding thejudgment and order of the learned Single Judge, we are of theview that the impugned judgment warrants no interferenceinasmuch as no illegality, infirmity or error of jurisdictioncould be shown before us.”

Coming to the submission raised by Shri P.P.Choudhary,Sr.Advocate that Registrar should not have made rider of financialcondition while enhancing age of superannuation, as the said directionhas not been questioned by the petitioners, suffice it to observe thatmere financial loss for one or other year cannot be the basis to deprivethe just benefit. When the business is running and increasing and it isnot likely to be closed, denial of benefit of enhancement of age ofsuperannuation was not justified, especially when the age ofsuperannuation has been increased in various other Departments of theState and statutory directions have been issued under Rule 39 of theRules of 2003.

Coming to the submission of the respondents that the writpetitions filed by the petitioners against the Cooperative Societies &Diary Federation are not maintainable as they do not fall within thedefinition of “State” under Article 12 of the Constitution of India, theyhave placed reliance on the decision of Single Bench of this Court inGopal Krishna Sharma V/s The Rajasthan Coopertive DairyFederation Jaipur & ors. (S.B.Civil Writ Petition No.1973/2002 decidedon 5.9.2008) wherein the matter pertained to grant of first selectiongrade and it was held that the Rajasthan Cooperative Dairy Federationand Jaipur Zila Dugdh Utpadak Sahakari Sangh could not be said to be State within the meaning of Article 12 of the Constitution of India andthus, writ petition filed by the petitioner against them was notmaintainable. However, it was not taken into consideration whether anystatutory provision or direction was involved in the matter. The decisionof Single Bench of this Court has also been placed on record in AbrarKhan and ors. V/s The State of Rajasthan & Ors. (S.B.Civil WritPetition No.2205/04 decided on 18.3.2008)) wherein the dispute waswith respect to tender notice and the Single Bench of this Court opinedthat Cooperative Society could not be termed to be “State” within themeaning of Article 12 of the Constitution and hence, writ petition filedagainst it was dismissed as not maintainable. Reliance has also beenplaced on the decision of the Single Bench of this Court inRamgopal &Ors. V/s State of Rajasthan & Ors. (S.B.Civil Writ Petition No.2816/94decided on September 15, 2006) wherein dispute was with respect to payscale and without much discussion, it was held that Society is not “State”within the meaning of Article 12 of the Constitution and thus, writpetition filed against it, could not be said to be maintainable. Reliancehas also been placed on the decision of Single Bench of this Court inAjmer Zila Dairy Employees Union V/s Registrar, RajasthanCooperative Societies & ors. (S.B.Civil Writ Petition No.631/93 decidedon 11[th] February, 1993) in which it was opined that Society is not “State”within the meaning of Article 12 of the Constitution and thus, notamenable to writ jurisdiction and the dispute, which the petitioner-Unionwas raising that the rule could not be framed and the terms ofemployment could not be changed, was held to be an industrial dispute.We are unable to subscribe the aforesaid view of the Single Bench that the Dairy Federation and Cooperative Societies are not “State” withinthe meaning of Article 12 of the Constitution of India. The aforesaiddecisions are of no help to the respondents. The decision of the ApexCourt inMadhya Pradesh.State Cooperative Dairy Federation Ltd. &

anr. V/s Rajnesh Kumar Jamindar & Ors. (2009 (15) SCC 221) isattracted in the instant case. In that case, the Apex Court considered theprovisions of the Madhya Pradesh Cooperative Societies Act, 1960, whichare pari materia to the provisions in the State of Rajasthan andconsidering the history of the Federation, it was held that appellant-M.P.State Co-operative Dairy Federation Ltd. was a part of the Department ofthe Government. It not only carries on commercial activities, it works forachieving the better economic development of a section of the people. Itseeks to achieve the principles laid down in Article 47 of the Constitutionof India, viz., nutritional value and health. It undertakes a training andresearch work. Guidelines issued by it are binding on the societies. Itmonitors the functioning of the societies under it. It is an apex body. Itmust, therefore, be held that the appellant would come within thepurview of the definition of `State' as contained in Article 12 of theConstitution of India. The Apex Court has laid down thus:- “12. The question as to whether the Federation is `State' within themeaning of Article 12 of the Constitution of India or not came up forconsideration before a Full Bench of the Madhya Pradesh High Courtin Dinesh Kumar Sharma v. M.P. Dugdh Mahasangh SahakariMaryadit [1993 MPLJ 786].

13. Inter alia relying on or on the basis of the decisions of thisCourt in Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722],Ramana Dayaram Shetty v. International Airport Authority of India[(1979) 3 SCC 489] and Chander Mohan Khanna v. National Council ofEducational Research and Training [(1991) 4 SCC 578 : AIR 1992 SC76], it was held in Dinesh Kumar Sharma case that the Federation isnot `State', opining:

(i) The entire share capital is not held by the StateGovernment.

(ii) The entire expenditure of the cooperative societies isnot met by the State Government.

(iii) It does not enjoy a monopoly status.

(iv) The State Government does not have any deep andpervasive control over the societies.

It was, however, noticed that the Managing Director is appointed bythe State Government but the Chairman of the Federation has aright to contest election; its functions inter alia being to encouragethe villagers, the persons engaged in the sale of milk and milkproducts, to give them employment, primarily resting on thecooperative principles which are not carried out pursuant to theState requirements in discharge of State's obligations for health,safety or general welfare of public generally.

14. The matter, however, was referred to a Special Bench in M.P.State Co-operative Dairy Federation and Others v. Madan LalChourasia [2007 (2) M.P.L.J. 594] for reconsideration of the saiddecision. Speaking for the Special Bench, consisting of five Hon'bleJudges, the Chief Justice of the High Court noticed that the sixauthoritative tests culled out in Ajay Hasia (supra) having beenreconsidered in Pradeep Kumar Biswas v. Indian Institute ofChemical Biology [(2002) 5 SCC 111], the tests laid down thereinonly were required to be considered, holding: (Madan Lal Case(2007) 2 MPLJ 594 pp.601-602 para 15)

“15. ...The Federation was registered as a Co- operativeSociety under the M.P. Co-operative Societies Act, 1960 onor about 13-5-1980. Bye- law 3.1 of the Bye-laws of theFederation states that the main object of the Federationcomprised of conducting various programmes ofmanufacture, collection, processing, distribution and sale ofmilk and milk products for the economic development of thefarmers and for developing and safeguarding the milkbusiness, milk producing animals and for the economicdevelopment of the groups engaged in milk production andspreading and developing other joint activities...the mainobject of the Federation discussed above clearly show thatthe work of the Federation relates to economic developmentof farmers, who are engaged in production and sale of milkin the State of Madhya Pradesh and this work has been takenup by the State Government through the agency of theFederation because development of milk and milk productsand economic development of farmers carrying the businessof sale of milk and milk products are part of the functions ofa welfare State."

15. It was found that the State Government and the CentralGovernment were having more than 91% of shares in terms of Bye-laws 4.0, 4.9 and 4.9.1. It was noticed: (Madan Lal case (2007) 2MPLJ 594 p.603 para 17)

“17. Bye-law 2.2 of the bye-laws of the Federation definesthe Board of Directors of the Federation to mean the Boardconstituted, elected and nominated under the bye-laws.Bye-law 22 provides for composition of the Board ofDirectors and the Council for Federation."

It noticed the composition of the Board of Directors of theFederation to hold: (Madan Lal case (2007) 2 MPLJ 594 pp.603-60417-19)

"17......It will be clear from the aforesaid composition ofthe Board of Directors of the Federation that out of 13members of the Board of Directors as many as 8 members arethe nominees of the State Government, Central Governmentand their agencies.

18. Under bye-law 27 of the bye-laws of the Federation, vastpowers have been vested in the Board of Directors of theFederation including the power to appoint, dismiss, suspendand regularize the services of the employees of theFederation such as Managers, Secretaries, Officers, Clerks andto fix their powers, duties, wages and allowances. The Boardof Directors of the Federation appear to have under the bye-laws of the Federation over all administrative powers andsince the majority of the Board of Directors are nominees ofthe State Government and the Central Government asrepresentatives of their respective departments and not asexperts as contended by Mr. Singh, we hold that theadministrative control of the Federation is with theGovernment.

19. Bye law 30 of the bye-laws of the Federation is titled'Managing Director' and bye-law 30.1 states that for managingthe business of the Federation, Managing Director shall beappointed by the State Government. Bye law 30.2 states thatthe Managing Director of the Federation shall be a ChiefExecutive and will work under the control, direction andguidance of the Board of Directors. Bye law 30.3 of the bye-laws states that the Managing Director shall execute thebusiness and work as per powers given to him, from time totime, by the Board of Directors and he can delegate hispowers given by the Board of Directors to his subordinateofficers and he will place the information of delegation of hispowers to subordinate officers in the next meeting of theBoard of Directors. It will thus be clear that the ManagingDirector is not only appointed by the State Government but isalso under the control, direction and guidance of the Board ofDirectors, which is dominated by the Government nominee.

Hence, day to day functioning of the Federation is alsocontrolled by the Government through the Managing Directorand the Board of Directors of the Federation..."

16. It was furthermore noticed:(Madan Lal Case, MPLJ p.605 para 20)

“20.Bye law 17 of the bye-laws is titled 'General Assembly'and bye law 17.1 states that the General Assembly of theFederation will have the supremacy under the Act, Rules andBye-laws. Bye law 17.2 deals with the composition of theGeneral Assembly and says that it will comprise of electedmembers of the Milk Union and all the nominated members ofBoard of Directors. Bye law 17.3 states that the Federationwill call a General Assembly every year, which will be beforethree months of the end of financial year and bye law 17.4states that the Federation can at any time call a GeneralAssembly to discuss emergency work. Bye law 18 states thatthe General Assembly will consider the subjects mentionedtherein and these are mainly the budget and programmepresented by the Board of Directors, the annual financialreport placed by the Board of Directors of the Federation, thedistribution of profits and decision on the audit applicationand audit removal report of the Board of Directors. Theseprovisions relating to the General Assembly of the Federationshow that the General Assembly was also dominated by theBoard of Directors. As the Board of Directors is dominated bythe nominees of the Government, the General Assembly willalso take decisions in its meeting in the manner as desired bythe Government. Hence, the Federation is also dominatedand controlled by the Government administratively andfunctionally as in the cases of Pradeep Kumar Biswas ((2002) 3SCC 111) and Virendra Kumar Srivastava ((2005) 1 SCC 149)."

17. On the aforementioned findings, the decision of the FullBench in Dinesh Kumar Sharma (supra) was overruled.

18. Mr. C.N. Sreekumar, learned counsel appearing on behalf of theFederation, in support of the appeals, would contend:

(i) The Special Bench of the High Court committed a seriouserror in refusing to consider the authoritative pronouncementof this Court in Ajay Hasia (supra) as also its earlier decisionin Dinesh Kumar Sharma (supra) to hold that the Federation isa `State' within the meaning of Article 12 of the Constitutionof India.

(ii) The Federation having been running into huge losses, theconditions precedent for retirement of the employees of theFederation as contained in Regulation 13 of the Regulationshaving been satisfied, the impugned judgment cannot besustained.

19. Mr. Vivek K. Tankha, learned senior counsel appearing on behalfof contesting respondents and Mr. Pragati Neekhra, learned counselappearing on behalf of the appellant in Civil Appeal arising out ofSLP (C) No. 17705 of 2008, on the other hand, would urge:

(i) The share capital, functional control and theadministrative control being completely in the hands of theGovernment of the State, the Federation is `State' withinthe meaning of Article 12 of the Constitution of India.

(ii) As the decision of this Court in Pradeep Kumar Biswas(supra) governs the field and the criteria laid down thereinbeing satisfied, no exception can be taken to the impugnedjudgment.

(iii) The Regulations governing the conditions of servicebeing statutory in character and the Federation, havingadopted the government circulars and rules for the purposeof implementation of its policy to retire compulsorily a largenumber of employees, were bound to follow the same.

(iv) The Scrutiny Committee and the Review Committeehaving not only consisted of the officers of the State but alsothe Registrar of the Cooperative Societies, it was futile tomove to the Registrar of the Cooperative Societies for settingaside the impugned circulars issued with regard tocompulsory retirement.

(v) Having regard to the Regulations governing payment ofback wages, as contained in Regulation 49(2) of theRegulations, the entire back wages should be directed to bepaid.

20. An additional contention has been raised in the Civil Appealarising out of SLP (C) No. 17705 of 2008 that the appellant thereinhaving been suffering from disability within the meaning of theprovisions of the Persons with Disabilities (Equal Opportunities,Protection of Rights and Full Participation) Act, 1995 (for short "the1995 Act"), Section 47 thereof would be attracted and, thus, theappellant was entitled to entire back wages.

21. Article 12 of the Constitution of India reads as under:

"12. Definition.--In this part, unless the context otherwiserequires, `the State' includes the Government and Parliamentof India and the Government and the legislature of each of theStates and all local or other authorities within the territory ofIndia or under the control of the Government of India."

The development of law in this regard in view of the decisionsrendered by this Court beginning from Rajasthan State ElectricityBoard v. Mohan Lal [(1967) 3 SCR 377], Ajay Hasia (supra) and otherdecisions including a Seven - Judge Bench decision of this Court inPradeep Kumar Biswas (supra), is to say the least phenomenal.

22. We may also notice that P.K. Ramachandra Iyer and Others v.Union of India and Others [(1984) 2 SCC 141] wherein Indian Councilfor Agricultural Research (ICAR) was held to be a `State' within themeaning of Article 12 of the Constitution of India, was distinguishedin Chander Mohan Khanna ((1991) 4 SCC 578)). However, ChanderMohan Khanna (supra) was overruled in Pradeep Kumar Biswas(supra) to the extent it followed the decision in Sabhajit Tewary v.Union of India [(1975) 1 SCC 485].

32. We have noticed the history of the Federation. It was a part ofthe Department of the Government. It not only carries oncommercial activities, it works for achieving the better economicdevelopment of a section of the people. It seeks to achieve theprinciples laid down in Article 47 of the Constitution of India, viz.,nutritional value and health. It undertakes training and researchwork. Guidelines issued by it are binding on the societies. Itmonitors the functioning of the societies under it. It is an apex body.We, therefore, are of the opinion that the appellant herein wouldcome within the purview of the definition of `State' as contained inArticle 12 of the Constitution of India.”

In view of the aforesaid dictum of the Apex Court and consideringthe activities of the Dairy Federation and Societies, the submission thatwrit petitions filed by the petitioners against them are not maintainableas they are not “State” within the meaning of Article 12 of theConstitution of India is liable to be rejected and it is hereby rejected.

Coming to the question whether RCDF should consider the questionof enhancement of age of superannuation or the respective Society, theRCDF is the Apex Society and the various Societies are signatories to theregistration of the Apex Society under the Act of 2001. The “Member”has been defined in Section 2(p) of the Act of 2001, which means aperson joining in the application for the registration of a CooperativeSociety and a person admitted to membership after such registration inaccordance with the Act of 2001 and the Rules and the bye laws andincludes a nominal and an associate member. Representatives of the Cooperative Societies were the signatories in the application forregistration of Apex Society-RCDF. It is not disputed that RCDF hasframed Regulations of 1980 and they have been adopted by variousSocieties. The State Government has power under section 123 of the Actof 2001 to prescribe by framing the Rules, service conditions ofemployees of the Society. In the absence of issuing statutory directions,the orders, which have been issued by the State Government, are alsoenforceable and they have the force of the law. The Government hasissued order on 16.6.1990 to the effect that all the Unions (CooperativeSocieties) shall adopt Model Service Rules, Cadre and Recruitment Rules,Standing Orders as suggested by RCDF. The order of the StateGovernment was complied with by RCDF and other constituentCooperative Societies and all Unions/Cooperative Societies had executedagreement with RCDF. The Model Agreement contains clause (3) which issimilar to clause (12) of the order of State Government, which is quotedabove. Thus, the Cooperatives Societies have agreed to follow all ServiceRules and Conditions prescribed by the RCDF for the employees of theSocieties signing the agreement.

In view of the aforesaid directions of the State Government andthe provisions contained in the Model Agreement signed by variousCooperative Societies and considering the fact that Service Regulations of1980 framed by RCDF have been adopted by various Cooperative Societiesand considering the fact that there should be uniformity with respect tothe age of superannuation, it would be appropriate that RCDF be directedto consider the question of enhancement of age of superannuation from58 to 60 years.

Conclusion

Resultantly, the impugned resolutions passed by the RCDF andSocieties are hereby quashed and the RCDF is directed to consider thequestion of enhancement of age of superannuation from 58 to 60 years inaccordance with the discussion made in the order and thereafter, thedecision be sent for adoption to the Cooperative Societies and at thattime, they can have say to the extent permissible under the law. It ismade clear that the RCDF cannot act arbitrarily and has to act inaccordance with law and discussion made in the order and if it is foundthat RCDF or Societies have acted in arbitrary manner, stern action wouldbe taken by this Court. In the contempt petitions, we have noted thatappropriate considerations and factors have not been taken intoconsideration inspite of clear and categorical directions issued by thisCourt and irrelevant aspects have been taken into consideration.However, we accept the unconditional apology which has been tenderedby the counsel appearing on behalf of the erring respondents, however,we warn them to be careful in future and not to act on irrelevantconsideration and in violation of the observations/directions of thisCourt. The notices of contempt are discharged and contempt proceedingsare dropped. Let the matter be reconsidered afresh within a period oftwo months from today.

It was also submitted that certain incumbents, who were allowedto continue in service under the orders of this Court and Federation,have not been paid salary and they have been removed retrospectively.We direct that they cannot be deprived of their salary for the period forwhich they have rendered services. The respondents are bound to makepayment of salary for the period for which they have rendered services.

With the aforesaid observations and directions, the contempt petitions, special appeals and writ petitions are disposed of.

(Kailash Chandra Joshi)J.

(Arun Mishra)C.J.

Parmar