While dismissing the appeals filed by two employees of the Cooperative Societies, the Jammu & Kashmir and Ladakh High Court has held that as long as statutory rules occupy the field, the service conditions of the employees cannot be altered in any manner on the strength of resolutions/approval/recommendations of the Department.

The Appellants-petitioners, being the employees of the Cooperative Societies, approached the High Court seeking continuation in service till attaining the age of 60 years.

The Division Bench of Justice Shahzad Azeem and Justice Sindhu Sharma held, “...SRO 233 of 1988 came to be promulgated in exercise of the power conferred under the Act of 1960, therefore, have the force of law and is binding on the appellants. In this view of the matter, we are of the opinion that so long SRO 233 of 1988 occupies the field, the service conditions of the appellants/employees of Cooperative Societies cannot be altered in any manner on the strength of the resolution(s)/approval/recommendations of the respondents.”

Advocate L. A. Latief represented the Appellants, while Government Advocate Fahim Nissar Shah represented the Respondents.

Factual Background

The Appellants, Mohammad Yousuf Mir and Abdul Majid Doshaba, were appointed to the common services of Cooperative Societies and were promoted to the posts of Assistant Manager and Manager. The appellants were to retire on attaining the age of 58 years i.e., precisely on March 31, 2021 and April 30, 2018, respectively. The respondents exchanged certain communications based on the representations of the employees of the Department for the enhancement of their age from 58 years to 60 years. There was a draft on record for the amendment of rules dealing with the service conditions of the employees, but no final decision was taken by the respondents.

The appellants approached the Writ Court and challenged the action of the respondents in retiring them at the age of 58 years, instead of 60 years i.e., at par with the Government employees of other departments, whose age of retirement came to be enhanced from 58 years to 60 years in terms of SRO 164 of 2014. Aggrieved by the dismissal of their petitions, the appellants filed the instant petition.

Issue

The point that arose for consideration was whether the retirement age of the employees of the Cooperative Societies could be altered merely based on draft Rules or recommendations without amending Statutory Rules governing the Service Conditions of the employees.

Reasoning

The Bench noted that the appellants were borne on the cadre strength of Jammu and Kashmir Cooperative Societies and thus their Service Conditions are governed by the Statutory Rules enacted in terms of the J&K Cooperative Societies Act, 1960 and the same stands saved by the J&K Cooperative Societies Act, 1989.

It was further noticed that Rule 13 of SRO 233 of 1988 deals with the matter related to retirement and resignation of the employees of Cooperative Societies, and in this regard, Rule 13(1) provides that a person appointed to the service shall retire on attaining the age of 58 years. “From the perusal of SRO 233 of 1988, we did not find that anywhere that the power is conferred or delegated to the respondents to alter the age of retirement of the employees of the Cooperative Societies. Therefore, mere making of recommendations by the respondents in no manner have the overriding effect over the provisions or SRO 233 of 1988, which came to be promulgated in exercise of power conferred under the Act of 1960 and saved by the Act of 1989”, the Bench mentioned.

The Bench was of the view that the appellants were bound by the order wherein they had undertaken to confine their respective claims only to the extent of salary for the period they worked beyond the age of 58 years.

The Bench further stated, “From the above discussion, what is deducible is that the reliance of the appellants on the inter-se departmental communications between the respondents in respect of proposal for enhancement of the age of retirement of its employees from 58 to 60 years as well as draft amendment rules are sans the statutory backing, hence are not binding and not enforceable by the court of law.”

“As a corollary to the above factual and legal position, we are of the opinion that the retirement age of the employees of the Cooperative Societies can be altered or enhanced only by making suitable amendments to the Statutory Rules (SRO 233 of 1988) governing the service conditions of the employees of the Cooperative Societies, and thus in the wake of this inbuilt inhibition, the work done beyond the age of 58 years particularly at the personal risk and responsibility do not entitle for the salary for such overstayal period”, it further added.

Thus, finding no error of fact or law in the judgments under challenge, the Bench dismissed the appeals.

Cause Title: Mohammad Yousuf Mir v. Union Territory of J&K (Case No.: LPA No. 4/2023)

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Jammu & Kashmir & Ladakh High CourtJustice Shahzad AzeemJustice Sindhu Sharma

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.