Statutory Rules Cannot Be Overridden By Recommendations: J&K&L High Court Denies Plea By Co-operative Employees For Enhanced Retirement Age

The High Court of Jammu & Kashmir and Ladakh has ruled that the retirement age of employees of Cooperative Societies remains 58 years under SRO 233 of 1988, and cannot be enhanced to 60 years merely on the strength of draft proposals or departmental recommendations.

Dismissing two appeals filed by Cooperative employees, a Division Bench of Justices Sindhu Sharma and Shahzad Azeem held "so long SRO 233 of 1988 occupies the field, the service conditions of the employees of Cooperative Societies cannot be altered in any manner on the strength of the resolution(s)/approval/recommendations of the respondents.”

The case arose from petitions an Assistant Manager & Manager at Cooperative Supermarket Pulwama, and Cooperative Marketing Society Sopore respectively. Both challenged their retirement notifications at the age of 58, contending that since the Government had enhanced the superannuation age of its employees to 60 years through SRO 164 of 2014, Cooperative employees too were entitled to the same benefit. They also relied on a 2019 communication of the Registrar, Cooperative Societies, recommending the increase of retirement age to 60 years, as well as draft amendment rules.

The court, however, was categorical that such reliance was misplaced. Observing that SRO 233 of 1988 was framed under Section 124 of the J&K Cooperative Societies Act, 1960 and saved under Section 177 of the 1989 Act.

The bench noted that "Mere making of recommendations by the respondents in no manner have the overriding effect over the provisions of SRO 233 of 1988… which have the force of law and are binding on the appellants.” It added that draft amendments or inter-departmental communications “are sans the statutory backing, hence are not binding and not enforceable by the court of law.”

On the claim of parity with Government employees, the court clarified that SRO 164 of 2014 applied only to Government servants and could not automatically extend to Cooperative Societies employees, whose service conditions are governed separately.

“We did not find anywhere that the power is conferred or delegated to the respondents to alter the age of retirement of the employees of the Cooperative Societies”, Justice Azeem recorded for the bench.

As to the appellants' individual claims, the Bench noted that the Assistant Manager did not work beyond the age of 58 and hence could not claim any salary. In contrast, the Manager continued to work until December 2022 on the strength of an interim court order which expressly permitted him to serve “at his own risk and responsibility.”

On this, the court held, “He shall not be legally entitled to the salary for the period worked beyond the age of 58 years, because Statutory Rules do not permit to perform or continue in service beyond 58 years.”

Ultimately, the Bench concluded that any change in retirement age can only come through statutory amendment. “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 their service conditions,” remarked the court and the appeals were therefore dismissed.

APPEARANCE:

Case Title: Mohammad Yousuf Mir Vs UT of J&K

L. A. Latief, Adv for Petitioner

Fahim Nissar Shah, GA for Respondents.

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