Retirement Age Of Cooperative Society Employees Can Be Increased Only Through Statutory Amendment, Not Departmental Proposals: J&K HC

Background Facts

The appellants were employees of the Cooperative Societies in the Union Territory of Jammu & Kashmir. The appellant joined the service and was promoted to the position of Assistant Manager, while other appellant became a Manager in the Cooperative Societies. The respondents issued an order dated 15.03.2021 notifying that the Assistant Manager would retire on 31.03.2021 on attaining the age of 58 years, in terms of SRO (Statutory Rules) 233 of 1988. Therefore, Assistant Manager was retired on 30.04.2018 on completion of 58 years. The appellants claimed that the retirement age should be 60 years on the basis of SRO 164 of 2014. It enhanced the retirement age of Government employees from 58 to 60 years. The recommendation of the Registrar Cooperative Societies dated 01.08.2019 also provided for enhancement of retirement age from 58 to 60 years for Cooperative employees.

The appellants contended that since proposals and draft amendment rules were already prepared to bring parity with Government employees, they should be allowed to continue in service till the age of 60 years. However, the respondents maintained that the service conditions of employees of Cooperative Societies are governed by SRO 233 of 1988, which is a statutory rule prescribing retirement at 58 years. Further that no formal amendment was made to change the retirement age.

Being aggrieved by their retirement at the age of 58 years, the appellants filed writ petitions before the Single Judge seeking continuation in service till 60 years. It was held by the Writ Court that since the appellants were the employees of the Cooperative Societies/Institutions and were subject to the provisions of SRO 233 of 1988 which forms a Common Service Rule for the Cooperative Institution employees. Therefore SRO 233 of 1988 still apply as on date as it has not been either modified, altered or repealed, therefore, the appellants are to be superannuated at the age of 58 years. It was further held that the appellants cannot claim to remain in service upto the age of 60 years on the basis of SRO 164 of 2014, as the Service Conditions of the appellants are governed under SRO 233 of 1988. Therefore, writ petitions were dismissed.

Aggrieved by the dismissal, the appellants preferred the intra-court appeals.

It was submitted by the appellants that the Government had enhanced the retirement age of its employees from 58 years to 60 years in terms of SRO 164 of 2014. The appellants relied upon the communication dated 01.08.2019 issued by the Registrar, Cooperative Societies, wherein a recommendation was approved for enhancement of the retirement age of Cooperative Society employees from 58 to 60 years.

On the other hand, it was submitted by the respondents that the appellants were governed by the statutory rules framed under SRO 233 of 1988, which specifically provides that the age of superannuation for employees of Cooperative Societies shall be 58 years. It was contended that SRO 164 of 2014, has no applicability to the employees of Cooperative Societies.

Findings of the Court

It was observed by the Court that the service conditions of the appellants are governed by SRO 233 of 1988, which was framed under the provisions of the J&K Cooperative Societies Act, 1960. It continues to remain in force under the J&K Cooperative Societies Act, 1989. It was held that Rule 13 of SRO 233 of 1988 provides that an employee of the Cooperative Societies shall retire on attaining the age of 58 years. It was further observed that no power has been delegated to the respondents under the SRO to alter or enhance the retirement age. Therefore, any recommendation or draft amendment prepared by the respondents has no statutory force and cannot override the provisions of SRO 233 of 1988.

It was further held that the appellants cannot claim any enforceable right on the basis of inter-departmental communications, recommendations, or draft amendment rules, as these have no binding effect in law. It was held that until the SRO 233 of 1988, statutory rules are amended, the retirement age of employees of Cooperative Societies will remain 58 years, and it cannot be altered by administrative instructions or departmental decisions.

In regard to the claim for salary for the period beyond the age of 58 years, it was noted by the Court that the Assistant Manager continued to work beyond 31.03.2021 under an order of the Writ Court, which clearly stated that such continuation would be at his own risk and responsibility. Therefore, it was held by the Court that the appellant is not entitled to salary for the period of service rendered beyond the age of superannuation. In the case of appellant Manager, it was observed that he did not work beyond 58 years, and hence no question of salary arose in his case.

It was held by the court 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.

With the aforesaid observations, both the appeals were dismissed by the court.

Case Name : Mohammad Yousuf Mir vs Union Territory of J&K & Ors

Case No. : LPA No. 4/2023 in WP (C) No. 747/2021

Counsel for the Petitioner : L. A. Latief, Adv.

Counsel for the Respondents : Fahim Nissar Shah, GA